THE BOOK WAS
DRENCHED

00

OU_1 60958

OSMANIA UNIVERSlpPY LIBRARY

Call No. Vi-^/fep J Accession No. S

Author /

Title

This book should be returned on or before the date
last marked below.

AN INTRODUCTION TO THE

PRINCIPLES OF
MORALS AND LEGISLATION

BY

JEREMY BENTHAM

OXFORD

AT THE CLARENDON PRESS

LONDON NEW YORK AND TORONTO

HENRY FROWDE

M CM VII

NOTE. The First Edition of this work was printed in
the year 1780; and first published in 1789. The present
Edition is a careful reprint of 'A New Edition, corrected
by the Author/ which was published in 1823.

PREFACE.

- v

THE following sheets weref'.As the note on the opposite page
expresses, printed so lojag^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 pemil code in terminis, 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 Haws he had discovered, he found himself
unexpectedly entangled in an unsuspected corner of the meta-
physical 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 bQn v
pointed out by the sincerity of severe and discerning friends ;
and conscience had certified the justness of their censure. The
inordinate length of borne 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 pre-
sent 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 depart-
ments 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.

a 2

iv Preface.

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 piece-meal, 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 inci-
dents 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 imper-
fections upon its head, he thinks it may be of assistance to the
few readers he can expect, to receive a short intimation of the

Preface. v

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 ti ue ground-work for the development of the latter set of
terms, has been laid by the explanation of the former, the com-
pletion 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 com-
passing the ends proposed by the former. In preference there-
fore, 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 govern-
ment, 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 .

1 For example. It is worse to lose than simply not to gam. A loss falls

vi Preface.

The consideration of the division of offences, and every thing
else that belongs to offences, ought, besides, to have pieeeded
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 con-
sidered 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, lie
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 prac-
tical uses, to which the discussions contained under that head
appeared applicable, are indicated : nor is theie, 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 unauthoritativc,
must be composed. He will venture to specify particularly, in
this view, the several chapters shortly characterized by the
words Sensibility ) Actions, Intcntionality , Consciousness, Motives,
Dispositions, Consequences. Even in the enormous chapter on

Uie lighter by being divided. The mfferiny, of a person hurt in gratification
of enmity, is greater than the gratification produced \>y the same cause.
These, and a few others which he will have occasion to exhibit at the head
of another publication, have the same claim to the appellation of axioms,
as those given by mathematicians under that name ; since, referring to
universal experience as their immediate basis, they are incapable of demon-
stration, and require only to be developed and illustrated, in order to be
recognised as incontestable.

Preface. vii

the division of offences, which, notwithstanding the forced com-
pression 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 1 , 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 I776 2 , he had hinted at the utility of a natural
classification of offences, in the character of a test for distin-
guibhiiig genuine from spurious ones. The case of u&ury 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 publica-
tion, 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 offence. 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 mathe-
matics 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 acces-
sible. He may therefore in this respect find himself in the con-
dition of those philosophers of antiquity, who are repiesented
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

1 The first edition was published in 1789, in quarto.

2 A Fragment on Government, &c., reprinted 1822.

viii Preface.

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 explana-
tion, 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 Fcemed 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 ist. 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 pro-
cedure: 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 constitu-
tional, 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 constitu-
tional 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.

Preface. ix

Part the gih. Principles of legislation in matters of political
economy.

Part the loth. P]an 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 1 .

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 poli-
tical 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 con-
tained 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
plo,ns 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 irregu-
larity the unavoidable result will be, a multitude of imperfec-
tions, 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

1 Such as obligation, right, power, possession, title, exemption, immunity,
franchise, privilege, nullity, validity, and the like.

x Preface.

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 rela-
tive, 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 particularising.

Allusion was made, at the outset of this advertisement, to
some unspecified difficulties, as the causes of the original suspen-
sion, and unfinished complexion, of the present work. Ashamed
of his defeat, and unable to dissemble it, he knows not how to
refuse 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 ? Wliat
the distinction, and where the separation, between a penal and
a civil law ? What the distinction, and ivhere 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 bo, the complete existence of
the fabric to be surveyed. Of 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 more

Preface. xi

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, than 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 con-
curred in seeing with no other eyes. Yet so far as a difference
can be assigned between branches so intimately connected, what-
ever difference there is, in point of importance, is in favour of
the logic of the will. Since it is only by their capacity of direct-
ing 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,

xii Preface.

a perpetual commentary of reasons l : 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 1 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 it 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 declaiiner. 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.

1 To the aggregate of them a common denomination has since been
allotted the rationale .

CONTENTS.

CHAPTER I.

OF THE PKINCIPLB OF UTILITY.

PAGE

Mankind governed by pain and pleasure . . . . i

Principle of utility, what . . . . . .2

A principle, what . . . . . .2

Utility, what ........ 2

Interest of the community, what . . . . .2

An action conformable to the principle of utility, what . . 3

A measure of government conformable to the principle of utility,

what ........ 3

Laws or dictates of utility, what . . . . 3

A partisan of the principle of utility, who . . . 3
Ought, ought not, right and wrong, &c., how to be understood . 3
To prove the rectitude of this principle is at once unnecessary and im-
possible ........ 4

It has seldom, however, as yet, been consistently pursued . . 4

It can never be consistently combated . . . . 4

Course to be taken for surmounting prejudices that may have been

entertained against it . . . . 5

CHAPTER II.

OF PRINCIPLES ADVERSE TO THAT OF UTILITY.

All other principles than that of utility must be wrong . . 8

Ways in which a principle may be wrong . . . .8

Asceticism, origin of the word . . . .8

Principles of the Monks . . . . .8

Principle of asceticism, what . . . . . 9

A partisan of the principle of asceticism, who . . . 9

This principle has had in some a philosophical, in others a religious

origin ........ 9

It has been carried farther by the religious party than by the philo-
sophical ... ..... 10

The philosophical branch of it has had most influence among per-
sons of education, the religious among the vulgar . . .10
The principle of asceticism has never been steadily applied by either

party to the business of government . . . .11

The principle of asceticism, in its origin, was but that of utility

misapplied . . . . . . . .12

xiv Contents.

PAGE

It can never be consistently pursued . . . . 1 3

The principle of sympathy and antipathy, what . . . 13

This is rather the negation of all principle, than any thing positive . 16
Sentiments of a partisan of the principle of antipathy . . .16
The systems that have been formed concerning the standard of right

and wrong, are all reducible to this principle . . 1 7
Various phrases, that have served as the characteristic

marks of so many pretended systems . . 1 7

1. Moral Sense . . . . . . 17

2. Common Sense . . . . . . 17

3. Understanding . . . . . . 17

4. RuleofHiyht . . . . . .17

5. Fitness of Thing* . . . . . . 17

6. Law of Nature . . . . . iS

7. Law of Reason, Right Reason, Natural Justice, Natural

fiquity, and Good Order . . . . .18

8. Truth . . . . . . .18

9. Doctrine of Election . . . . .18
10. Itejttigtiancy to Nature . . . . .18

Mischief they produce . . . . .18

Whether utility is actually the sole ground of all the appro-
bation we ever bestow, is a different consideration . 19
This principle will frequently coincide with that of utility . .18
This principle is most apt to err on the side of severity . . 20
But errs, in some instances, on the side of lenity . . .21
The theological principal, what not a separate principle . .21
The principle of theology how reducible to one or another of

the other three principles . . . .22

Antipathy, let the actions it dictates be ever so right, is never of itself

a right ground of action . . . . . .22

CHAPTER III.

OF THE FOUR SANCTIONS OK SOURCES OF PAIN AND PLEASURE.

Connexion of this chapter with the preceding . . . . 24

Four sanctions or sources of pleasure and pain , . . .24

1 . The physical sanction . . . . . . 25

2. The political . . . . . . . 25

3. The moral or popular . . . . . . 25

4. The religious . . . . . . .25

The pleasures and pains which belong to the religious sanction, may

regard either the present life or a future . . . . 25

Contents. xv

PAGE

Those which regard the present life, from which soever source they

flow, differ only in the circumstances of their production . . 26

Example . . . . . . . .26

Those which regard a future life are not specifically known , . 27

The physical sanction included in each of the other three . . 27

Use of this chapter . . . . . . -27

CHAPTER IV.

VALUE OF A LOT OF PLEASURE OK PAIN HOW TO BE MEASURED.

Use of this chapter . . . . . . .29

Circumstances to be taken into the account in estimating the value of
a pleasure or pain considered with reference to a single person,

and by itself . . . . . . .29

considered as connected with other pleasures or pains . . 29

considered with reference to a number of persons . . . 30
Process for estimating the tendency of any act or event . . 30
Use of the foregoing process . . . . . -31
The same process applicable to good and evil, profit and mischief, and

all other modifications of pleasure and pain . . . 31

Conformity of men's practice to this theory . . . .32

CHAPTER V.

PLEASURES AND PAINS, THEIR KINDS.

Pleasures and pains are either, i. Simple ; or 2. Complex . . 33

The simple pleasures enumerated . . . . -33

The simple pains enumerated . . . . . 33

Analytical view, why none given . . , . 34

1. Pleasures of sense enumerated . . . . 34

2. Pleasures of wealth, which are either of acquisition , or of

possession . . . . . . -34

3. Pleasures of skill . . . . . -34

4. Pleasures of amity . . . . . 35

5. Pleasures of a good name . . . . 35

6. Pleasures of power . . . . . -35

7. Pleasures of piety . . . . . -35

8. Pleasures of btnevolence or good-will . . . . 36

9. Pleasures of malevolence or ill-will . . . .36
10. Pleasures of the memory . . . . . 36
n. Pleasures of the imagination . . . . . 36

xvi Contents.

PAGE

12. Pleasures of expectation . . . . , 36

13. Pleasures depending on association . . . 37

14. Pleasures of relief . . . . . -37
i. Pains of privation . . . . . 37

These include, I. Pains of desire . . . . .38

2. Pains of disappointment . . . -38

3. Pains of regret . . . . . 38
a. Pains of the senses . . . . . . 38

No positive pains correspond to the pleasure of the sexual

sense . . . . . . . 38

3. Pains of awkwardness . . . . . , 39

No positive pains correspond to the pleasure of novelty . 39
nor to those of wealth . . . . -39

Is this a distinct positive pain, or only a pain of privation ? . 39

4. Pains of enmity . . . . . . -39

5. Pains of an ill-name . . . . , 39

The positive pains of an ill-name, and the pains of privation,
opposed to the pleasures of a good name, run into one
another . . . . . . -39

6. Pains of piety . . .40

No positive pains correspond to the pleasures of power . 40

The positive pains of piety, and the pains of privation,

opposed to the pleasures of piety, run into one

another . . . . . . .40

7. Pains of benevolence . . . , . .40

8. Pains of malevolence . . . . . .40

9. Pains of the memory . . . . , .40

10. Pains of the imagination . . . , .40

11. Pains of expectation . . . . , . 41

12. Pains of association . . . . . . 41

Pleasures and pains are either self -regarding or extra-regarding . 41

Pleasures and pains of amity and enmity distinguished from

those of benevolence and malevolence . . . 41

In what way the law is concerned with the above pains and pleasures 41

Complex pleasures and pains omitted, why . . . 4 1

Specimen. Pleasures of a country prospect . . .42

CHAPTER VI.

OF CIBCUMSTANCES INFLUENCING SENSIBILITY.

Pain and pleasure not uniformly proportioned to their causes . . 43

Degree or quantum of sensibility, what . . . -43

Bias or quality of sensibility, what . . . . 43

Exciting causes pleasurable and dolorific . . . 44

Co tents. xvii

PAGE

Circumstances influencing sensibility, what . . . 44

Circumstances influencing sensibility enumerated . . . 44

Extent and intricacy of this subject . . . 45

1. Health . . . . . . . -45

2. Strength . . . . . . . .46

Measure of strength , the weight a man can lift . . 46

WeaknesSf what . . . . . .46

3. Hardiness . . . . . . .46

Difference between strength and hardiness . . . 47

4. Bodily imperfection . . . . . 47

5. Quantity and quality of knowledge . , . -47

6. Strength of intellectual powers . . . . .48

7. Firmness of mind . . . . . .48

8. Steadiness . . . . . . - 49

9. Bent of inclinations . . . . . -49

10. Moral sensibility . . . . . -49

11. Moral biases . . . . . . .50

12. Religious sensibility . . . . . -5

13. Religious biases . . . . . . .50

14. Sympathetic sensibility . . . . . . 50

15. Sympathetic biases . . . . . -50
16,17. Antipathetic sensibility and biases . . . . 51

18. Insanity . . . . . . . .51

19. Habitual occupations . . . . 5 1

20. Pecuniary circumstances . . . . . . 52

21. Connexions in the way of sympathy . . . '53

22. Connexions in the way of antipathy . . . . 55

23. Radical frame of body . . . . . .55

24. Radical frame of mind . . . . . 5*>

Idiosyncrasy, what . . . . . 56

This distinct from the circumstance of frame of body . . .56

Whether the soul be material or immaterial makes no

difference . . . . . .56

and from all others . . . . . . 57

Tet th* result of them is not separately discernible . . 57

Frame of body indicates, but not certainly, that of mind . 57

Secondary influencing circumstances . . . - . 58

25. Sex . . . . . . . .58

26. Age ..... . 59

27. Rank .... ... 60

28. Education . . . . . . .60

29. Climate . . . . .61

30. Lineage ...... . 62

31. Government .... . 63

32. Religious prof ession . . . -63

xviii Cent Us.

PACT:

Use of the preceding observations . . . * .64

How far the circumstances in question can be taken into account . 65
To what exciting causes there is most occasion to apply them . . 66

Analytical view of the circumstances influencing sensibility . . 68

Analytical view of the constituent articles in a man's pe-
cuniary circumstance* . . . .69

CHAPTER VII.

OF HUMAN ACTIONS IN GENERAL.

The demand for punishment depends in part upon the tendency of

the act . . . . . . .70

Tendency of an act determined by its consequences . . -7

Material consequences only are to be regarded . . . 70

These depend in part upon the intention . . . 7 1

The intention depends as well upon the understanding as the will . 71
In an action are to be considered, i. The act. 2. The circumstances.

3. The intentionally. 4. The consciousness. 5. The motives.

6. The disposition . . . , . . . 71

Acts positive and negative . . . . . . 72

Acts of omission are still acts . . . . 72

Negative acts may be so relatively or absolutely . . 7 2

Negative acts may be expressed positively ; and vice versa . -7*

Acts external and internal . . . . . 73

Acts of discourse, what . . . . . . 73

External acts may be transitive or intransitive . . . 73
Distinction between transitive acts and intranbitive, recog-
nised by grammarians . . . . . 73

A transitive act, its commencement, termination y and intermediate

progress . . . . . . . .74

An intransitive act, its commencement, and termination . 74

Acts transient and continued . . . . . 74

Difference between a continued act and a repetition of acts . . 74

Difference between a repetition of acts and a habit . . -75
Acts are indivisible, or divisible f and divisible, as well with regard to

matter as to motion . . . . . 75

Caution respecting the ambiguity of language . . . . f6

Circumstances are to be considered . . . . . 76

Circumstances, what . . . . . . . 76

Circumstance, archetypation of the word , . 77

Circumstances, material and immaterial . . 77

Contents.

xix

PAGE

A circumstance may be related to an event in point of causality,
in four ways, viz. I. Production. 2. Derivation. 3. Collateral
connexion. 4. Conjunct influence . . . -77

Example. Assassination of Buckingham . . . . 78

It is not every event that has circumstances related to it in all those

ways ........ 79

Use of this chapter . . . . . . .80

CHAPTEK VIII.

OP INTENTIONALITY.

Recapitulation . . . . . . . .82

The intention may regard, I. The act: or, 2. The confluences . 82

Ambiguity of the words voluntary and involuntary . . 82

It may regard the act without any of the consequences . . 83

or the consequences without regarding the act in all its stages . 83

but not without regarding ihe first stage . . . .83

An act unintentional in its first stage, may be so with
respect to i. Quantity of matter moved : 2. Direction :
3. Velocity . . . . . .83

A consequence, when intentional, may be directly so, or obliqiuly . 84
When directly, ultimately so, or mediately . . . .84

When directly intentional, it may be exclusively so, or inexclusively . 85
When inexclusively, it may be conjunctively, disjunctively, or indis-
criminately so . . . . . .85

When disjunctively, it may be with or without preference . . 85

Difference between an incident's being unintentional, and
disjunctively intentional, when the election is in favour
of the other . . . . . .85

Example . . . . . . . .85

Intentionality of the act with respect to its different $<rf/e, how fur

material ...... . 87

Goodness and badness of intention dismissed . . . 87

CHAPTER IX.

OF CONSCIOUSNESS.

Connexion of this chapter with the foregoing . . . .89

Acts advised and unadvised ; consciousness, what . . .89

Unadvisedness may regard either existence, or materiality . . 89

The circumstance may have been present, past, or future , . 89

An unadvised act may be heedless, or not heedless . .89

A misadvised act, what, a missnpposal . . . .90

b 2

xx Contents.

PAGE

The supposed circumstance might have been material in the way

either o{ prevention or of compensation . . . .90

It may have been supposed present, past, or future . . .90

Example, continued from the last chapter . . . .90

In what case consciousness extends the intentionality from the act to

the consequences . . . . . . .91

Example continued . . . . . . 92

A misadvised act may be rash or not rash . . . .92

The intention may be good or bad in itudf, independently of the

motive as well as the eventual consequences . . 92

It is better, when the intention is meant to be spoken of as being good

or bad, not to say, the motive . . . . 93

Example ... 93

Intention, in what cases it may be innocent . . . -94

Intentionality and consciousness, how spoken of in the Roman law . 94
Use of this and the preceding chapter . 3 . 95

CHAPTER X.

OF MOTIVES.

i. Different senses of the word Motive.

Motives, why considered . . . . . -97

Purely speculatire motives have nothing to do here . . 97

Motives to the will ....... 98

Figurative and unfyuralive sensex of the word . . .98

Motives interior and exterior . . . . . -99

Motive in prospect motive in esse . . . . - 99

Motives immediate and remote ..... 100

Motives to the understanding how they may influence the will . 101

2. No Motives either constantly good or constantly bad.

Nothing can act of itself as a motive, but the idea of pleasure or pain 101
No sort of motive is in itself a lad one . . . .102

Inaccuracy of expressions in which yood or bad are applied to motives 102
Any sort of motive may give birth to any sort of act . . .102

Difficulties which stand in the way of an analysis of this sort . 103

3. Catalogue of Motives corresponding to that of Pleasures
and Pains.

Physical desire corresponding to pleasures of seme in general . 105

The motive corresponding to the pleasures of the palate . .105

Contents. xxi

PAGE

Sexual desire corresponding to the pleasures of the sexual scuse . 106

Curiosity ', &c. corresponding to the pleasures of curiosity . .107

None to pleasures of sense . . . . . .107

Pecuniary interest to the pleasures of wealth . . . .107

None to the pleasures of skill . . . . . .107

To tho pleasures* of amity, the desire of ingratialimj one's self . 107

To the pleasures of a good name, the love of reputation . .108

To the pleasures of power, the fore of poiver . . . .no

The motive belonging to the religious sanction . . .in

Good-will, &c. to the pleasures of #ympuffiy . . . .112

Ill-will, &c. to the pleasures of antipathy . . . .114

8el/-preserration t to the several kinds of /WIN* . . 115

To the pains of exertion, the love of ease . . . .117

Motives can only be bad with reference to the most frequent com-
plex ion of their effects . . . . . .118

How it is that motives, such as lii*t, avarice, &c., are constantly bad . 1 18
Under the above restrictions, motives may be distinguished into good,

bad, and indifferent or neutral . . . . .119

Inconveniences of this distribution , . . . .119

It is only in individual instances that motives can be good or bad . 1 20

Motives distinguished into social, dissocial, and self -regarding . 120

social, into purely-social, and semi-social . . . .121

4. Order of pre-eminence among Motives.

The dictates of good-will are the surest of coinciding with those of

utility . . . . . . . .121

Laws and dictates conceived as issuing from motives . 121

Yet do not in all cases . . . . . . .121

Next to them come those of the love of reputation . . .122

Next those of the dcsi re of a mity . . . . .124

Difficulty of placing those of religion . . . . . 1 24

Tendency, they have to improve . . . . .126

Afterwards come the self-regarding motives : and, lastly, that of

displeasure . . . . . . 127

5. Conflict among Motives.

Motives impelling and restraining, what . . .127

What are the motives most frequently at variance . , .128

Example to illustrate a struggle among contending motives . 128

Practical use of the above disquisitions relative to motives . , 1 29

xxii Contents.

CHAPTEIi XL

OP HUMAN DISPOSITIONS IN GENERAL.

PAGE

Disposition, what . . . . . . . 131

How far it belongs to the present subject . . . . 131

A mischievous disposition ; a meritorious disposition ; what . .132

What a man's disposition is, can only be matter of presumption . 132
It depends upon what the act appears to be to him . . .132

Which position is grounded on two facts : T. The correspondence

between intentions and consequences .... 133
2. Between the intentions of the same person at different times . 133
A disposition, from which proceeds a habit of doing mischief,

cannot be a good one . . . . 133

The disposition is to be inferred, i. From the apparent tendency of the

act: 2. From the nature of the motif? .... 133

Case i. Tendency, good motive, self -regarding . . 134

Case 2. Tendency, bad motive, self -regarding , . - l ?A

Case 3. Tendency, good motive, good-will . . . . 134

Case 4. Tendency, bad motive, good-will * . . 135

This case not an impossible one . . . . 135

Example I. . . . . r . 135

Example II. . . . . . . . . 135

Example III. . . . . . . . . 1 36

Case 5. Tendency, good motive, love of reputation . . . 136

The bulk of mankind apt to depreciate this motive . r 36

Case 6. Tendency, bad motive, honour . . . . 137

Example I. ........ 137

Example II. . . . . . . . .13**

Case 7. Tendency, good motive, piety . . . -138

Case 8. Tendency, lad motive, religion . . t 138

The disposition may be bad in this case . . . 139

Case 9. Tendency, good motive, malevolence . . .140

Example . , . . . . . .140

Case 10. Tendency, "bad motive, malevolence . . . 141

Example ........ 141

Problem to measure the depravity in a man's disposition . .141

A man's disposition is constituted by the sum of his intentions . 142

which owe their birth to motires . . . . .142

A seducing or corrupting motive, what a tutelary or prescrratory

motive ........ 142

Tutelary motives are either standing or occasional . .142

Contents. xxiii

PAGE

Standing tutelary motives are, i. Good-will . . . .143

2. The love of reputation . . 143

3. The desire of amity . . 144

4. The motive of reliyion . . 144

Occasional tutelary motives may be any whatsoever . . . 145

Motives that are particularly apt to act in this character are, I. Love

of ease. 2. Keif -preservation . . . . . 145

Dangers to which self-preservation is most apt in this case to have

respect, are, I. Dangers purely physical. 2. Dangers depending

on detection . . . . . . .146

Danger depending on detection may result from, i. Opposition on

the spot : 2. Subsequent punishment .... 146
The force of the two standing tutelary motives of love of reputation,

and desire of amity, depends upon detection . . .146

Strength of a temptation, what is msant by it . . . 147

Indications afforded by this and other circumstances respecting the

depravity of an offender's disposition . . . .148

Rules for measuring the depravity of disposition indicated by an

offence ........ 149

Use of this chapter . . . . . . . 151

CHAPTER XII.

OP THE CONSEQUENCES OF A MISCHIEVOUS ACT.

i. Shaj)es in which the mischief of an Act may show itself.

Recapitulation . . . . . . . .152

Mischief of an act, the aggregate of its mischievous consequences . 152
The mischief of an act, primary or secondary . . . .152

Primary original or derivative . . . . 153

The secondary i. Alarm: or, 2. Danger . . . .153

Example . . . . . . . . 153

The danger whence it arises zpast offence affords no direct motive

to & future ....... 155

But it suggests feasibility , and iveakens the force of restraining

motives . . . . . . * . 155

viz. i. Those issuing from the political sanction . . 155

2. Those issuing from the moral . . . .156

It is said to operate by the influence of example . . . 1 56

The alarm and the danger, though connected, are distinguishable . 157
Both may have respect to the same person, or to others . , 157

The jprimary consequences of an act may be mischievous, and the

secondary, beneficial . . . 157

xxiv Contents.

PAGE

Analysis of the different shapes in which the mischief of an act may

show itself. . . . . . . .158

applied to the preceding cases . % . . ! 59

to examples of other cases where the mischief is less conspicuous . 159
Example I. An act of self-intoxication . . . - 159
Example II. Non-payment of a tax ..... 160
No alarm, when no assignable person is the object . . .162

2. How intent tonality, $c. may influence the mischief of

an Act.

Secondary mischief influenced by the state of the agent's mind . 163
Case i. Inuoluntariness . . . . . .164

Case 2. Unintentionality with heedlessness . . . .164

Case 3. Mi&supposal of a complete justification, without rashness . 165
Case 4. Misaupposal viz. partial justification, without rashness . 165
Case 5. Missupposal, with rashness . . . . .165

Case 6. Consequences completely intentional, and free from witV

suppogal ........ 165

The nature of a motive takes not away the mischief of the secondary

consequences . . . . . . .165

Nor the beneficialness . . . . . . .166

But it may aggravate the mischievousness, where they are mis-
chievous . . . . . . . .166

But not the most in the case of the worst motives . . .166

It does the more, the more considerable the tendency of the motive

to produce such acts . . . . . .167

which is as its strength and constancy . . . .167
General efficacy of a species of motive, how measured . .167
A mischievous act is more BO, when issuing from a self-regarding

than when from a dissocial motive . . . .167

so even when issuing from the motive of religion . . .168
How the secondary mischief is influenced by disposition . .168
Connexion of this with the succeeding chapter . , .168

CHAPTER XIII.

CASES UNMEET FOR PUNISHMENT.

i . General view of cases unmeet for Punishment.

The end of law is, to augment happiness . . . .170

But punishment is an evil . . . . . . 1 70

Contents. xxv

PAGE

What concerns the end, and several other topics, relative to

punishment, dismissed to another work . . . 1 70

Concise view of the ends of punishment . . . 1 70

Therefore ought not to be admitted . . . . . 171

1. Where groundless. . . . . . . 171

2. Inefficacious . . . ^ . . . 171

3. Unprofitable . . . . . . . 171

4. Or needless . . . . . . . 171

2. Cases in which Punishment is groundless.

1. Where there baa never been any mischief : as in the case of consent 171

2. Where the mischief was outweighed : as in precaution against

calamity, and the exercise of powers . . . .172

3. or will, for a certainty, be cured by compensation . .172

Hence the favours shown to the offences of responsible

offenders : such as simple mercantile frauds . .172

3. Cases in which Punishment must be inefficacious.

1. Where the penal provision comes too late: as in i. An ex- post -facto

law. 2. An ultra-legal sentence . . . . .172

2. Or is not made known : as in a law -not sufficiently promulgated . 173

3. Where the will cannot be deterred from any act, as in, [a] Infancy 1 73

[b] Insanity . . . . . ^. . . 173

[c] Intoxication . . . . . . . 173

In infancy and intoxication the case can hardly be proved

to come under the rule . . . . 173

The reason for not punishing in these three cases is com-
monly put upon a wrong footing . . . j 74

4. Or not from the individual act in question, as in, . . . 174

[a] Unintentionally . . . . . .174

[b] Unconsciousness . . . . . . 174

[c] Missuppo&al . . . . . . . 174

5. Or is acted on by an opposite superior force : as by, . . 174

[a] Physical danger . . . . . . . 175

[b] Threatened mischief . . . . . . 175

Why the influence of the moral and religious sanctions is

not mentioned in the same view . . . 175
(5. or the bodily organs cannot follow its determination : as under

physical compulsion or restraint . . . . .175

xxvi Contents.

4. Gases wJwre Punishment is unprofitable.

PAGE

1. Where, in the sort of case in question, the punishment would pro-

duce more evil than the offence would . . . . 175
Evil producible by a punishment its four branches viz. [a] "Re-
straint . . . . . . . -1/5

[b] Apprehension . . . . . . .176

[c] Sufferance . . . . . . .176

[d] Derivative evils . . . . . . . 1 76

The evil of the offence, being different according to the nature of the

offence, cannot be represented here . . . 1 76

2. Or in the individual case in question : by reason of .176

[a] The multitude of delinquent* . . . . .176

[b] The value of a delinquent's service . . . , 177

[c] The displeasure of the people . . . . . 177

[d] The displeasure of fore iyn powers . . . . 177

5. Cases where Punishment is needless.

i. Where the mischief is to be prevented at a cheaper rate: as by

instruction . . . . . . . 177

CHAPTER XIV.

OF THB PBOPORTTON BETWEEN PUNISHMENTS AND OFFENCES.

Recapitulation . . . . . . .178

Four objects of punishment . . . . . .178

1st Object to prevent all offences . . . . .178

2nd Object to prevent the worst . . . . .178

3rd Object to keep down the mischief . . . .178

4th Object to act at the least expense . . . .178

"Rules of proportion between punishments and offences . .178

The same rules applicable to motives in general . . 1 79

Rule i. Outweigh the profit of the offence . . . . 179

Profit may be of any other kind, as well as pecuniary . 179
Impropriety of the notion that the punishment ought not to

increase with the temptation . . . . 1 79

The propriety of taking the strength of the temptation for a ground

of abatement, no objection to this rule . . . .180

Rule 2. Venture more against a great offence than a small one . 181

Example. Incendiarism and coining . . .181

Rule 3. Cause the least of two offences to be preferred . .181

Rule 4.- Punish for each particle of the mischief . . .181

Example. In blows given, and money stolen . .181

Content*. xxvii

PAGE

Rule 5. Punish in no degree without special reason . . .183

Rule 6. Attend to circumstances influencing sensibility . .182

Comparative view of the above rules . . . . .182

Into the account of the value of a punishment, must be taken its

deficiency in point of certainty and proximity . . .182

Also, into the account of the mischief and profit of the offence, the

mischief and profit of other offences of the same habit . .183

Rule 7. Want of certainty must be made up in magnitude . .184

Rule 8. So also want of proximity . . . . .184

Rule 9. For acts indicative of a habit, punish as for the halrit . 184

The remaining rules are of less importance . . . 184

Rule 10. For the sake of quality, increase in quantity . . 184

Rule ji. Particularly for a moral lesson . . . .184

A. punishment applied by tcay of moral lesson, what . 184

Example. In simple corporal injuries . . .185

Example. In military laws . . . . . 185

Rule 12. Attend to circumstances which may render punishment

unprofitable . . . . . . . 185

Rule 1 3. For simplicity** sake , small disproportion s may be neglected 185
Proportionality carried very far in the present work why 1 85
Auxiliary force of the physical, moral, and religious sanctions, not

here allowed for why . . . . . .186

Recapitulation . . . . . . . .186

The nicety here observed vindicated from the charge of inutility . 187

CHAPTER XV.

OF THE PBOPEBTIES TO BE GIVEN TO A LOT OF PUNISHMENT.

Properties are to be governed by proportion . . . .189

Property i. Variability . . . . . .189

Property 2. Equability . . . . . .190

Punishments which are apt to be deficient in this respect . . 19 r

Property 3. Gominensur ability to other punishments . . .191

How two lots of punishment may be rendered perfectly commen-
surable ........ 191

Property 4. Characteristicalness . . . . .192

The mode of punishment the most eminently characteristic, is that of

retaliation . . . . . . .192

Property 5. Exemplarity . . . . . . 193

The most effectual way of rendering a punishment exemplary is by

means of analogy ....... 194

Property 6. Frugality . . . . . . . 194

Frugality belongs in perfection to pecuniary punishment . . 194

xxviii Contents.

PAGE

Exemplarity and frugality in what they differ and agree . . 195

Other properties of inferior importance . . . . 195

Property 7. Subserviency to reformation . . . . 195

applied to offences originating in ill-will . . . . 195

to offences originating in indolence joined to pecuniary intercut . 196
Property 8. Efficacy with respect to disablement . . .196

is most conspicuous in capital punishment . . . .196
Other punishments in which it is to be found . . . .197
Property 9. Subserviency to compensation . . . 197
Property 10. Popularity . . . . . .198

Characteristicalness renders a punishment, I. memorable:
2. exemplary : 3. popular . . . .198

Mischiefs resulting from the unpopularityofn punishment discontent

among the people, and weufcnexs in the law . . .198

This property supposes a prejudice which the legislature ought to cure 199
Property n. Remistibility . . . . . .199

To obtain all these properties, punishments must be mired . .201

The foregoing properties recapitulated . . . .201

Connexion of this with the ensuing chapter .... 202

CHAPTER XVI.

DIVISION OF OFFENCES.

i. Classes of Offences.

Method pursued in the following division . . . 204

Distinction between what are offences and what ought to he . . 204
No act ought to be an offence but what is detrimental to the com-

munity ........ 205

To be so, it must be detrimental to some one or more of its members . 205

These may be assignable or not ..... 205

Persons assignable, how . . . . . 205

If assignable, the offender himself, or others .... 205

Class I. Private offences ...... 205

Class 2. Semi-public offences ...... 206

Limits between private, semi-public, and public offences,

are, strictly speaking, undistinguishable . . 206

Class 3. Self -regarding offences ..... 206

Class 4. Public offences . . . . . .207

Class 5. Multiform offences, viz. I. Offences by falsehood. 2. Offences

against trust ....*'... 207

The imperfections of language an obstacle to arrangement . 207

Irregularity of this class ..... 208

which could not be avoided on any other plan . . . 208

Contents. xxix

i 2. Divisions and sub-divisions.

PAGE

Divisions of Class i. i Offences against person. 2 Property.
3 Reputation. 4 Condition. 5 Person and property. 6
Person and reputation ...... 208

In what manner pleasure and pain depend upon the relation

a man bears to exterior objects . . . .209

Divisions of Class 2. i. Offences through calamity . . .211

Sub-divisions of offences through calamity, dismissed . . .212

2. Offences of mere delinquency, how they correspond with the divi-
sions of private offences . . . . . .212

Divisions of Class 3 coincide with those of Class i . . .212

Divisions of Class 4 . . . . . -213

Exhaustive method departed from . . . . 213

Connexion of the nine first divisions one with another . .214

Connexion of offences against religion with the foregoing ones . 219

Connexion of offences against the national interest in general with the

rest . . . . . . . .221

Sub-divisions of Class 5 enumerated . . . . .221

Divisions of offences by falsehood . . . . .221

Offences by falsehood, in what they agree with one another . .221

in what they differ . . . . . .222

S lib-divisions of offences by falsehood are determined by the divisions

of the preceding classes . . . . . .222

Offences of this class, in some instances, change their names; in

others, not . . . . . . . 223

A trust, what . ...... 223

Power and right, why no complete definition is here given

of them . . . . . . .224

Offences against trust, condition, and property, why ranked under

separate divisions . . . . . . .226

Offences against trust their connexion with each other . . 234

Prodigality in trustees dismissed to Class 3 . . . . 241

The sub-divisions of offences against trust are also determined by the

divisions of the preceding classes . . . .241

Connexion between offences by falsehood and offences against trust . 242

3. Genera of Class i.

Analysis into genera pursued no further than Class i . . 243
Offences against an individual may be simple in their effects or com-
plex ........ 243

Offences against person their genera .... 243

Offences against reputation ...... 246

xxx Contents.

PAGE

Offences against proper ty . . . . . . 247

Payment, what . . . . . .248

Offences against person and reputation , - . . 253

Offences against person and property . .... 254

Offences against condition Conditions domestic or civil . . 255

Domestic conditions grounded on natural relationships . . 255

Relations two result from every two objects . .256

Domestic relations which are purely of legal institution . . 258

Offences touching the condition of a master . . . .261

Various modes of sere if tide ...... 263

Offences touching the condition of a servant .... 264

Guardianship, what Necessity of the institution . . . 266

Duration to be given to it . . . . .269

Powers that may, and duties that ought to be, annexed to it . . 269

Offences touching the condition of & guardian . . .270

Offences touching the condition of a ward , . . .272

Offences touching the condition of a parent . . . 274

Offences touching the filial condition . . . . .276

Condition of a husband. Powers, duties, and rights, that may be an-
nexed to it . . . . . . . 278

Offences touching the condition of a husband . . . .280

Offences touching the condition of a wife . . . .282

Civil conditions . . . . . . .287

4. Advantages of the present method.

General idea of the method here pursued . . . .296

Its advantages . . . . . . . 299

i. It is convenient for the apprehension and the memory . 299

2. It gives room for general propositions .... 300

3. It points out the reason of the law .... 301

4. It is alike applicable to the laws of all nations . -301

5. Characters of the Jive classes.

Characters of the classes, how deducible from the above method . 302

Characters of class i . . . . . . 302

Characters of class 2 . . . . . . . 304

Characters of class 3 . . < . . . . 305

Characters of class 4 . . . . . . . 306

Characters of class 5 . . . . . . . 307

Contents. xxxi

CHAPTER XVII.

UF THE LIMITS OP THE PENAL BKANCH OF JURISPRUDENCE.

i. Limits between private Ethics and the art of Legislation.

PAGE
Use of this chapter ....... 309

Ethics in general, what . . . . . . 310

Private ethics . . . . . . . .310

The art of government : that is, of legislation and administration . 310
Interests of the inferior animals improperly neglected in

legislation . . . . . .310

Art of education . . . . . . , 311

Ethics exhibit the rules of, i. Prudence. 2. Probity. 3. Beneficence 312
Probity and beneficence how they connect with prudence . .312

Every act which is a proper object of ethics is not of legislation . 312
The limits between the provinces of private ethics and legislation,

marked out by the cases unmeet for punishment . . 314

1. Neither ought to apply where punishment is groundless . . 314

2. How far private ethics can apply in the cases where punishment

would be inefficacious . . . . . . 315

How far, where it would be unprofitable . . . . 315

Which it may be, I. Although confined to the guilty . .316

2. By enveloping the innocent . . .318

Legislation how far necessary for the enforcement of the dictates of

prurience . . . . . . , . 319

Apt to go too far in this respect . . . . .320

Particularly in matters of re lig i on . . . . . 320

How far necessary for the enforcement of the dictates of probity . 321

of the dictates of beneficence . . . . .322
Difference between private ethics and the art of legislation recapitu-
lated ........ 323

2. Jurisprudence, its branches.

Jurisprudence, expository censorial . . . . . 323

Expository jurisprudence, authoritative unauthoritative . . 324

Sources of the distinctions yet remaining . . . . 324

Jurisprudence, local universal . . . . 3 2 5

internal and international ..... 326
Internal jurisprudence, national and provincial, local or particular . 327
Jurisprudence, ancient living . . . . .328
Jurisprudence, statutory customary . . . . . 329
Jurisprudence, cicil penal criminal .... 329
Question, concerning the distinction between the civil branch and the

penal, stated ....... 329

xxxii Contents.

PAGE

I. Occasion and purpose of this concluding note . . 330

II. By a law here is not meant a statute . . . 330

III. Every law is either a command, or a revocation of one . 330

IV. A declaratory law is not, properly speaking, a law . 330
V. Every coercive law creates an offence . . . 330

VI. A law creating an offence, and one appointing punishment,

are distinct laws . . . . . 331

VII. A discocrcive law can have no punitory one appertaining to

it but through the intervention of a coercive one . 331

VIII. But a punitory law involves the simply imperative one it

belongs to ...... 331

IX. The simply imperative one might therefore be spared, but

for its expository matter . . . . 331

X. Nature of such expository matter . . . . 331

XL The vastness of its comparative bulk is not peculiar to

legislative commands . . . . -332

XII. The same mass of expository matter may serve in common

for many laws . . . . . 33*

XIII. The imperative character essential to law, is apt to be con-

cealed in and by expository matter . . . 332

XIV. The concealment is favoured by the multitude of indirect

forms in which imperative matter is capable of being

couched ....... 332

XV. Number and nature of the laws in a code, how determined. 333

XVI. General idea of the limits between a civil and a penal code 333

XVII. Contents of a civil code ..... 333

XVIIL Contents of a penal code ..... 333

XIX. In the Code Frederic the imperative character is almost

lost in the expository matter . . . -333

XX. So in the Roman law ..... 334

XXI. In the barbarian codes it stands conspicuous . . 334

XXII. Constitutional code, its connexion with the two others . 334

XXII I. Thus the matter of one law may be divided among all

three codes . . . . . -334

XXIV. Expository matter, a great quantity of it exists everywhere,

in no other form than that of common or judiciary law 334
XXV. Hence the deplorable state of the science of legislation,

considered in respect of its form . . 335

XXVI. Occasions affording an exemplification of the difficulty as
well as importance of this branch of science ; attempts
to limit the powers of supreme representative legislatures 335
XXVII. Example: American declarations of rights. . . 335

AN INTRODUCTION

TO THE

PEINCIPLES OF MOKALS AND LEGISLATION.

CHAPTER I.

OF THE PRINCIPLE OF UTILITY.

I. NATURE has placed mankind under the governance of two Mankind
sovereign masters, pain and pleasure. It is for them alone toy V palnand
point out what we ought to do, as well as to determine what we pleasure *
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 l recognises

1 Note by the Author, July 1822.

To this denomination has of late been added, or substituted, the greatest
happiness or greatest felicity principle : this for shortness, instead of saying
at length that principle which states the greatest happiness of all those
whose interest is in question, as being the right and proper, and only right
and proper and universally desirable, end of human action : of human action
in every situation, and in particular in that of a functionary or set of func-
tionaries exercising the powers of Government. The word utility does not
so clearly point to the ideas of pleasure and pain as the words happiness and
felicity do : nor does it lead us to the consideration of the number, of the
interests affected; to the number, as being the circumstance, which contri-
butes, in the largest proportion, to the formation of the standard here in
question ; the standard of right and wrong, by which alone the propriety of
human conduct, in every situation, can with propriety be tried. This want
of a sufficiently manifest connexion between the ideas of happiness and
pleasure on the one hand, and the idea of utility on the other, I have every
now and then found operating, and with but too much efficiency, as a bar to
the acceptance, that might otherwise have been given, to this principle.

BENTHAM

3 Of the Principle of Utility. [CHAP.

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 presen
work : it will be proper therefore at the outset to give an ex-
plicit and determinate account of what is meant by it. By the
Principle of principle l of utility is meant that principle which approves or
whatf* disapproves of every action whatsoever, according to the ten-
dency which 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.

utility Hi. By utility is meant that property in any object, whereby

it tends to produce benefit, advantage, pleasure, good, or happi-
ness, (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.

A principle, * The word principle is derived from the Latin principium: which seems
what * to be compounded of the two words 'primus, first, or chief, and cipium,

a termination which seems to be derived from capio, to take, as in manci-
pium, municipium; to which are analogous, auceps, forceps, and others. It
is a term of very vague and very extensive signification : it is applied to
any thing which is conceived to servo as a foundation or beginning to any
series of operations : in some cases, of physical operations ; but of mental
operations in the present case.

The principle here in question may bo taken for an act of the mind ; a
sentiment ; a sentiment of approbation ; a sentiment which, when applied
to an action, approves of its utility, as that quality of it by which the
measure of approbation or disapprobation bestowed upon it ought to be
governed.

T.] Of the Principle of Utility. 3

IV. The interest of the community is one of the most general interest of

,1 , , , . & thocoTnmu-

expressions that can occur in the phraseology of morals : no **#* what,
wonder that the meaning of it is often lost. When it has a
meaning, it is this. The community is a fictitious body, com-
posed of tho individual persons who are considered as consti-
tuting as it were its members. The interest of the community
then is, what ? 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 x .
A thing is said to promote the interest, or to be/or 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 the An action
principle of utility, or, for shortness sake, to utility, (meaning totfrin. e
with respect to the community at large) when the tendency it ut^f whitV"
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 A measure of
kind of action, performed by a particular person or persons) may conformable
be said to be conformable to or dictated by the principle of cipielrf util
utility, when in like manner the tendency which it has to aug- bty ' whatt
ment 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 govern- Laws or dic-
ment, is supposed by a man to be conformable to the principle liVAvhaV"
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 con-
formable to such law or dictate.

IX. A man may be said to be a partizan of the principle of Apartizanof
utility, when the approbation or disapprobation he annexes toofutmty! pe
any action, or to any measure, is determined by and proportioned w

1 Interest is one of those words, which not having any superior geniw,
cannot in the ordinary way be defined.

4 Of the Principle of Utility. [CHAP.

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.

Ought, X. Of an action that is conformable to the principle of utility

riglit and' one may always say either that it is one that ought to be done,

howTobe' or at least that it is not one that ought not to be done. One

00 ' 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.

TO prove the XI. Has the rectitude of this principle been ever formally

this princi- contested ? It should seem that it had, by those who have not

unnecessary known what they have been meaning. Is it susceptible of any

sibie. 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.

it has sol- XII. Not that there is or ever has been that human creature
ever,' as yet breathing, however stupid or perverse, who has not on many,
sisteivUy ~ perhaps on most occasions of his life, deferred to it. By the
pursue . na tural constitution of the human frame, on most occasions of
their lives men in general embrace this principle, without think-
ing 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.
It can never XIII. Whena man attempts to combat the principle of utility,
it is with reasons drawn, without his being aware of it, from

bated.

i.] Of the Principle of Utility. 5

that very principle itself 1 . 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 im- Course^to be

1 'The principle of utility, (I have heard it said) is a dangerous principle:
it is dangerous on certain occasions to consult it.' This is as much as to
say, what ? that it is not consonant to utility, to consult utility : in short,
that it is not consulting it, to consult it.

Addition by the Author, July 1822.

Not long after the publication of the Fragment on Government, anno
I776,in which,m the character of an all-comprehensive and all-commanding
principle, the principle of utility was brought to view, one person by whom
obseivation to tho above effect was made Avas Alexander Wcdderburrt, at
that time Attorney or Solicitor General, afterwards successively Chief Jus-
tire of the Common Pleas, and Chancellor of England, under the successive
titles of Lord Loughborough and Earl of Rosslyn. It was made not
indeed in my hearing, but in the hearing of a person by whom it was
almost immediately communicated to me. So far from being self-contra-
dictory, it was a shrewd and perfectly true one. By that distinguished
functionary, the state of tho Government was thoroughly understood : by
the obscure individual, at that time not so much as supposed to be so : his
disquisitions had not been as yet applied, with any thing like a comprehen-
sive view, to the field of Constitutional Law, nor therefore to those features
of the English Government, by which the greatest happiness of the ruling
one with or without that of a favoured few, are now so plainly seen to be
the only ends to which the course of it has at any time been directed. The
principle of utility wasaii appellative, at that time employed employed by
me, as it had been by others, to designate that which, in a more perspicuous
and instructive manner, may, as above, be designated by the name of the
greatest happiness principle. ' This principle (said Wedderburn) is a dan-
gerous one.' Saying so, he said that which, to a certain extent, is strictly
true : a principle, which lays down, as tho only right and justifiable end of
Government, tho greatest happiness of the greatest number how can it be
denied to be a dangerous one ? dangerous it unquestionably is, to every
government which has for its actual end or object, the greatest happiness
of a certain one, with or without the addition of some comparatively small
number of others, whom it is matter of pleasure or accommodation to him
to admit, each of them, to a share in the concern, on tho footing of so
many junior partners. Dangerous it therefore really was, to the interest
the sinister interest of all those functionaries, himself included, whose
interest it was, to maximize delay, vexation, and expense, in judicial and
other modes of procedure, for the sake of the profit, extractible out of the
expense. In a Government which had for its end in view the greatest
happiness of the greatest number, Alexander Wedderburn might have been
Attorney General and then Chancellor: but he would not have been
Attorney General with 15,000 a year, nor Chancellor, with a peerage with
a veto upon all justice, with 25,000 a year, and with 500 sinecures at his
disposal, under the name of Ecclesiastical Benefices, besides et cceteras.

6 Of the Principle of Utility. [CHAP.

surmounting possible ; but, from the causes that have been mentioned, or
that U may 8 from some confused or partial view of it, a man may happen to
entertained be disposed not to relish it. Where this is the case, if he thinks
agams i . ^ 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 and act by ?

3. If there be, let him examine and satisfy himself whether
the principle he thinks he has found is really any separate in-
telligible 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 senti-
ments ; 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 dis-
approbation, 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 to-day, may not (without the
least change in its nature) be wrong to-morrow ? 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

T.] Of the Principle of Utility. 7

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 senti-
ment 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 IT.

OF PRINCIPLES ADVERSE TO THAT OF UTILITY.

A II other L IF the principle of utility be a right principle to be governed
than that of by, and that in all cases, it follows from what has been just

utility must / ,, , , . . , ,.. f ., .

be wrong, observed, that whatever principle diners 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.

Wa^s in II. A principle may be different from that of utility in two
principle ways : i. By being constantly opposed to it : this is the case
wrens? with a principle which may be termed the principle of asceti-
cism l . 2. By being sometimes opposed to it, and sometimes

Asceticism, l Ascetic is a term that has been sometimes applied to Monks. It comes
word? f the fr m a Greek word which signifies exercise. The practices by which Monks
Principles of sought to distinguish themselves from other men were called their Exer-
tue Monks, cises. These exercises consisted in so many contrivances they had for
tormenting themselves. By this they thought to ingratiate themselves
with the Deity. For the Deity, said they, is a Being of infinite benevo-
lence : now a Being of the most ordinary benevolence is pleased to see
others make themselves as happy as they can: therefore to make ourselves
as unhappy as wo can is the way to please the Deity. If any body asked
them, what motive they could find for doing all this? Oh ! said they, you
are not to imagine that we are punishing ourselves for nothing : we know
very well what we are about. You are to know, that for every grain of
pain it costs us now, we are to have a hundred grains of pleasure by and by.
The case is, that God loves to see us torment ourselves at present : indeed
he has as good as told us so. But this is done only to try us, in order just
to see how we should behave : which it is plain he could not know, without
making the experiment. Now then, from the satisfaction it gives him to
see us make ourselves as unhappy as we can make ourselves in this present
life, we have a sure proof of the satisfaction it will give him to see us as
happy as he can make us in a life to come.

Of Principles adverse to that of Utility. 9

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, Principle of
which, like the principle of utility, approves or disapproves of what.
any action, according to the tendency which it appears to have

to augment or diminish the happiness of the party whose in-
terest is in question ; but in an inverse manner : approving of
actions in as far as they tend to diminish his happiness ; dis-
approving of them in as far as they tend to augment it.

IV. It is evident that any one who reprobates any the least Apnrtizanof
particle of pleasure, as such, from whatever source derived, is of ascet lp
pro tanto a partizan of the principle of asceticism. It is only * m> w l
upon that principle, 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 neces-
sarily 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, This prin-
by whom the principle of asceticism appears to have been em-?A P som<fa a
braced ; the one a set of moralists, the other a set of religion- ? a il

ists. Different accordingly have been the motives which appear origin? 1
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 splen-
etic and revengeful Deity. I say in this case fear : for of the
invisible future, fear is more powerful than hope. These cir-
cumstances characterize the two different parties among the
partizans of the principle of asceticism ; the parties and their
motives different, the principle the same.

lo Of Principles adverse to that of Utility. [CHAP.

it has been VI. The religious party, however, appear to have carried it
ther hy the farther than the philosophical: they have actedmore consistently
than and less wisely. The philosophical party have scarcely gone
1 " farther than to reprobate pleasure : the religious party have fre-

quently 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.

Tnephiio- VII. From these two sources have flowed the doctrines from
branch of it which the sentiments of the bulk of mankind have all along re-
most influ- ceived a tincture of this principle ; some from the philosophical,
some from the religious, some from both. Men of education

the reiigfous more frequently from the philosophical, as more suited to the
vulgar.* e elevation of their sentiments : the vulgar more frequently from
the superstitious, as more suited to the narrowness of their in-
tellect, 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 inter-
mingle, 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 prin-
ciple of utility, whom they joined in branding with the odious
name of Epicurean.

TI.] Of Principles adverse to that of Utility. n

VIII. The principle of asceticism, however, with whatever The princi-.
warmth it may have been embraced by its partisans as a rule of
private conduct, seems not to have been carried to any consider-
able length, when applied to the business of government.
few instances it has been carried a little way by the philosophical ~

party: witness the Spartan regimen. Though then, perhaps, it j
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 consider-
able 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

T2 Of Principles adverse to that of Utility. [CHAP.

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 im-
becility, 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 inhabi-
tants into emigration, it has been with other views, and in pur-
suit 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 obliga-
tion by a vow.
The prin- IX. The principle of asceticism seems originally to have been

cipleof asce- i. i i i i i

ticism, in its the reverie of certain hasty speculators, who having perceived,

origin, was - . , i i i ,...

but that of or fancied, that certain pleasures, when reaped in certain cir-
cumstances, 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

ii.] Of Principles advene to that of Utility. 13

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 it can never

, r , ... , , , ; , f ,. . * J be consist-

pursued ; and it is but tautology to say, that the more con- entiy pur-

sistently it is pursued, the better it must ever be for human-
kind. 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 1 to that of utility, that which Tho prin-

ciple of sym-

1 The following Note was first printed in January 1789.

It ought rather to have been styled, more extensively, the principle of
caprice. Where it applies to the choice of actions to be marked out for
injunction or prohibition, for reward or punishment, (to stand, in a word,
as subjects for obligations to be imposed,) it may indeed with propriety be
termed, as in the text, the principle of sympathy and antipathy. But this
appellative does not so well apply to it, when occupied in the choice of the
events which are to serve as sources of title with respect to rights : where
the actions prohibited and allowed the obligations and rights, being already
fixed, the only question is, under what circumstances a man is to be in-
vested with the one or subjected to the other? from what incidents occasion
is to be taken to invest a man, or to refuse to invest him, with the one, or
to subject him to the other? In this latter case it may more appositely be
characterized by the name of the phantastic principle. Sympathy and
antipathy are affections of the sensible faculty. But the choice of titles
with respect to rights, especially with respect to proprietary rights, upon
grounds unconnected with utility, has been in many instances the work,
not of the affections but of the imagination.

When, in justification of an article of English Common Law, calling
uncles to succeed in certain cases in preference to fathers, Lord Coke pro-
duced a sort of ponderosity he had discovered in rights, disqualifying them
from ascending in a straight line, it was not that he loved uncles particu-
larly, or hated fathers, but because the analogy, such as it was, was what
his imagination presented him with, instead of a reason, and because, to a
judgment unobservant of the standard of utility, or unacquainted with the
art of consulting it, where affection is out of the way, imagination is the
only guide.

When I know not what ingenious grammarian invented the proposition
Delegatus non potest delegare 9 to serve as a rule of law, it was not surely
that he had any antipathy to delegates of the second order, or that it was
any pleasure to him to think of the ruin which, for want of a manager at
home, may befal the affairs of a traveller, whom an unforeseen accident
has deprived of the object of his choice : it was, that the incongruity, of
giving the same law to objects so contrasted as active and passive are, was
not to be surmounted, and that -atus chimes, as well as it contrasts, with
-are.

14 Of Principles advene to that of Utility. [CHAP.

pathy and at this day seems to have most influence in matters of govern-
whatf y> ment, is what may be called the principle of sympathy and an-

When that inexorable maxim, (of which the dominion is no more to be
defined, than the date of its birth, or the name of its father, is to be found, )
was imported from England for the government of Bengal, and the whole
fabric of judicature was crushed by the thunders of ex post facto justice, it
was not surely that the prospect of a blameless magistracy perishing in
prison afforded any enjoyment to the unoffended authors of their misery ;
but that the music of the maxim, absorbing the whole imagination, had
drowned the cries of humanity along with the dictates of common sense *.
Fiat Justitia, ruat codum, says another maxim, as full of extravagance as
it is of harmony : Go heaven to wreck so justice be but done : and what
is the ruin of kingdoms, in comparison of the wreck of heaven?

So again, when the Prussian chancellor, inspired with the wisdom of I
know not what Roman sage, proclaimed in good Latin, for the edification
of German ears, Servitus servitutis non datur, [Cod. Fred. torn. ii. par. 2.
liv. 2. tit. x. 6. p. 308.] it was not that he had conceived any aversion to
the life-holder who, during the continuance of his term, should wish to
gratify a neighbour with a right of way or water, or to the neighbour who
should wish to accept of the indulgence ; but that, to a jurisprudential ear,
-tus -tutis sound little less melodious than -atus -are. Whether the melody
of the maxim was the real reason of the rule, is not left open to dispute :
for it is ushered in by the conjunction quia, reason's appointed harbinger:
quia servitus servitutis non datur.

Neither would equal melody have been produced, nor indeed could
similar melody have been called for, in either of these instances, by the
opposite provision : it is only when they are opposed to general rules, and
not when by their conformity they are absorbed in them, that more specific
ones can obtain a separate existence. Delegatus potest delegare, and Ser-
vitus servitutis datur, provisions already included under the general adop-
tion of contracts, would have been as unnecessary to the apprehension and
the memory, as, in comparison of their energetic negatives, they are insipid
to the ear.

Were the inquiry diligently made, it would be found that the goddess of

1 Additional Note by the Author, July 1822.

Add, and that the bad system, of Mahometan and other native law was to be put down
at all events, to make way for the inapplicable and still more mischievous system of English
Judge-made law, and, by the hand of his accomplice Hastings, was to be put into the pocket
of Impey Importer of this instrument of subversion, 8,000 a-year contrary to law, in
addition to the 8,000 a-year lavished upon him, with the customary profusion, by the hand
of law. See the Account of this transaction in Mill's British India.

To this Governor a statue is erecting by a vote of East India Directors and Proprietors :
on it should be inscribed Let it but put money into our pockets, no tyranny too flagitious
to be worshipped by us.

To this statue of the Arch-malefactor should be added, for a companion, that of the long,
robed accomplice : the one lodging the bribe in the hand of the other. The hundred millions
of plundered and oppressed Hindoos and Mahometans pay for the one : a Westminster
Hall subscription might pay for the other.

What they have done for Ireland with her seven millions of souls, the authorised deniers
and perverters of justice have done for Hindostan with her hundred millions. In this there is
nothing wonderful. The wonder is that, under such institutions, men, though in ever such
small number, should be found, whom the view of the injustices which, by English Judge-
made law, they are compelled to commit, and the miseries they are thus compelled to pro-
duce, deprive of health and rest. Witness the Letter of an English Hindostan Judge, Sept. i,
18x9, which lies before me. I will not make so cruel a requital for his honesty, as to put his
name in print : indeed the House of Commons 1 Documents already published leave little
need of it.

IT.] Of Principles adverse to that of Utility. 15

tipathy. By the principle of sympathy and antipathy, I mean
that principle which approves or disapproves of certain actions,

harmony has exercised more influence, however latent, over the dispensa-
tions of Themis, than her most diligent historiographers, or even her most
passionate panegyrists, seem to have been aware of. Every one knows,
how, by the ministry of Orpheus, it was she who first collected the sons of
men beneath the shadow of the sceptre : yet, in the midst of continual
experience, men seem yet to learn, with what successful diligence she has
laboured to guide it in its course. Every one knows, that measured num-
bers were the language of the infancy of law : none seem to have observed,
with what imperious sway they have governed her maturer age. In English
jurisprudence in particular, the connexion betwixt law and music, however
less perceived than in Spartan legislation, is not perhaps less real nor less
close. The music of the Office, though not of the same kind, is not less
musical in its kind, than the music of the Theatre ; that which hardens the
heart, than that which softens it : sostenutos as long, cadences as sono-
rous ; and those governed by rules, though not yet promulgated, not less
determinate. Search indictments, pleadings, proceedings in chancery, con-
veyances : whatever trespasses you may find against truth or common sense,
you will find none against the laws of harmony. The English Liturgy,
justly as this quality has been extolled in that sacred office, possesses not
a greater measure of it, than is commonly to be found in an English Act of
Parliament. Dignity, simplicity, brevity, precision, intelligibility, possi-
bility of being retained or so much as apprehended, every thing yields to
Harmony. Volumes might be filled, shelves loaded, with the sacrifices
that are made to this insatiate power. Expletives, her ministers in Grecian
poetry are not less busy, though in different shape and bulk, in English
legislation : in the former, they are monosyllables * : in the latter, they are
whole lines a .

To return to the principle of sympathy and antipathy : a term preferred
at first, on account of its impartiality, to the principle of caprice. The
choice of an appellative, in the above respects too narrow, was owing to my
not having, at that time, extended my views over the civil branch of law,
any otherwise than as I had found it inseparably involved in the penal.
But when we come to the former branch, we shall see the phantastic prin-
ciple making at least as great a figure there, as the principle of sympathy
and antipathy in the latter.

In the days of Lord Coke, the light of utility can scarcely be said to have
as yet shone upon the face of Common Law. If a faint ray of it, under the
name of the argumentum ab inconvenienti, is to be found in a list of about
twenty topics exhibited by that great lawyer as the co-ordinate leaders of
that all-perfect system, the admission, so circumstanced, is as sure a proof
of neglect, as, to the statues of Brutus and Cassius, exclusion was a cause
of notice. It stands, neither in the front, nor in the rear, nor in any post of
honour ; but huddled in towards the middle, without the smallest mark of
preference. [Coke, Littleton, n. a.] Nor is this Latin inconvenience by
any means the same thing with the English one. It stands distinguished
from mischief : and because by the vulgar it is taken for something less
bad, it is given by the learned as something worse. The law prefers a

1 Mei/, TOI, ye, vvv, &c.

2 And be it further enacted by the authority aforesaid, that Provided always, and it
ia hereby further enacted and declared that &c. &c.

1 6 Of Principles adverse to that of Utility. [CHAP.

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 ex-
trinsic 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.
This is XII. It is manifest, that this is rather a principle in name

rather the . . . . . r . r

negation of than in reality : it is not a positive principle of itself, so much

all principle, J . r r f. . .

than any as a term employed to signify the negation of all principle,
tive, 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 disapproba-
tion : 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.

Sentiments XIII. In looking over the catalogue of human actions (says
of tne a priiJ n a partisan of this principle) in order to determine which of them
pathy! Wltl " are to be marked with the seal of disapprobation, you need but
to take counsel of your own feelings : whatever you find in your-
self a propensity to condemn, is wrong for that very reason. For
the same reason it is also meet for punishment : in what pro-
portion it is adverse to utility, or whether it be adverse to utility
at all, is a matter that makes no difference. In that same propor-
tion also is it meet for punishment : if you hate much, punish

mischief to an inconvenience, says an admired maxim, and the more ad-
mired, because as nothing is expressed by it, the more is supposed to be
understood.

Not that there is any avowed, much less a constant opposition, between
the prescriptions of utility and the operations of the common law : such con-
stancy we have seen to be too much even for ascetic fervor. [Supra, par. x ]
From time to time instinct would unavoidably betray them into the paths
of reason : instinct which, however it may be cramped, can never be killed
by education. The cobwebs spun out of the materials brought together by
* the competition of opposite analogies/ can never have ceased being warped
by the silent attraction of the rational principle : though it should have
been, as the needle is by the magnet, without the privity of conscience.

ii.] Of Principles adverse to that of Utility. 17

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 systems

.> j -i -i r i j i 11 i i ijji that have

the standard ot right and wrong, may all be reduced to the been formed
principle of sympathy and antipathy. One account may serve the standard
for all of them. They consist all of them in so many con- wron*, arc
trivances for avoiding the obligation of appealing to any external tothfa prin 1 ?
standard, and for prevailing upon the reader to accept of the Clple '
author's sentiment or opinion as a reason for itself. The phrases
different, but the principle the same *.

1 It is curious enough to observe the variety of inventions men have hit various
upon, and the variety of phrases they have brought forward, in order to fiS^SrSSfas
conceal from the world, and, if possible, from themselves, this very general Jtf^JJJJg 1 JJ"
and therefore very pardonable self-sufficiency. sVmariy p S re-

1. One man says, he has a thing made on purpose to tell him what is f^f d sys "
right and what is wrong ; and that it is called a moral sense : and then he ItMoral Se nse.
goes to work at his ease, and says, such a thing is right, and such a thing

is wrong why ? ' because my moral sense tells me it is.'

2. Another man comes and alters the phrase : leaving out moral, and 2 - common
putting in common, in the room of it. He then tells you, that his common Sense *
sense teaches him what is right and wrong, as surely as the other's moral

sense did : meaning by common sense, a sense of some kind or other, which,
ho says, is possessed by all mankind : the sense of those, whose sense is not
the same as the author's, being struck out of the account as not worth
taking. This contrivance does better than the other ; for a moral sense,
being a new thing, a man may feel about him a good while without being
able to find it out : but common sense is as old as the creation ; and there
is no man but would be ashamed to be thought not to have as much of it
as his neighbours. It has another great advantage : by appearing to share
power, it lessens envy : for when a man gets up upon this ground, in order
to anathematize those who differ from him, it is not by a sic volo sicjubeo,
but by a velitis jubeatis.

3. Another man comes, and says, that as to a moral sense indeed, ho 3. under,
cannot find that he has any such thing : that however he has an under- standin -
standing, which will do quite as well. This understanding, he says, is the
standard of right and wrong : it tells him so and so. All good and wise

men understand as he does : if other men's understandings differ in any
point from his, so much the worse for them : it is a sure sign they are
either defective or corrupt.

4. Another man says, that there is an eternal and immutable Rule of
Right : that that rule of right dictates so and so : and then he begins
giving you his sentiments upon any thing that comes uppermost : and
these sentiments (you are to take for granted) are so many branches of the
eternal rule of right.

5. Another man, or perhaps the same man (it's no matter) says,

BBNTHAM

1 8 Of Principles adverse to that of Utilify. [CHAP.

Thisprin- . XV. It is manifest, that the dictates of this principle will
frequently frequently coincide with those of utility, though perhaps with-

there are certain practices conformable, and others repugnant, to the
Fitness of Things ; and then he tells you, at his leisure, what practices arc
conformable and what repugnant : just as he happens to like a practice or
dislike it.

6. Law of 6. A great multitude of people are continually talking of the Law of
Nature. Nature ; and then they go on giving you their sentiments about what is

right and what is wrong : and these sentiments, you are to understand, are
so many chapters and sections of the Law of Nature.

7, Law of 7' Instead of the phrase, Law of Nature, you have sometimes, Law
Reason, Right of Reason, Right Reason, Natural Justice, Natural Equity, Good Order.
Natural' Any of them will do equally well. This latter is most used in politics.
Natural ^ ne ^ nreo ^ as ^ aro niuch more tolerable than the others, because they do
Equity, Good not very explicitly claim to be any thing more than phrases : they insist
order. k ut f ee iy upon the being looked upon as so many positive standards of

themselves, and seem content to be taken, upon occasion, for phrases ex-
pressive of the conformity of the thing in question to the proper standard,
whatever that may be. On most occasions, however, it will be better to
say utility : utility is clearer, as referring more explicitly to pain and
pleasure.

s. Truth. 8. We have one philosopher, who says, there is no harm in any thing in

the world but in telling a lie : and that if, for example, you were to murder
your own father, this would only be a particular way of saying, he was not
your father. Of course, when this philosopher sees any thing that he does
not like, he says, it is a particular way of telling a lie. It is saying, that
the act ought to be done, or may be done, when, in truth, it ought not to be
done.

* Doctrine of 9- The fairest and openest of them all is that sort of man who speaks out,
Election. anc j sa ys, I am o f the number of the Elect : now God himself takes care to
inform the Elect what is right : and that with so good effect, and let them
strive ever so, they cannot help not only knowing it but practising it. If
therefore a man wants to know what is right and what is wrong, he has
nothing to do but to come to me.

Repugnancy to I* i 8 upon the principle of antipathy that such and such acts are often
Nature. reprobated on the score of their being unnatural : the practice of exposing
children, established among the Greeks and Romans, was an unnatural
practice. Unnatural, when it means any thing, means unfrequent : and
there it means something ; although nothing to the present purpose. But
here it means no such thing : for the frequency of such acts is perhaps the
great complaint. It therefore means nothing ; nothing, I mean, which
there is in the act itself. All it can serve to express is, the disposition of
the person who is talking of it : the disposition he is in to be angry at the
thoughts of it. Does it merit his anger? Very likely it may : but whether
it does or no is a question, which, to be answered rightly, can only be
answered upon the principle of utility.

Unnatural, is as good a word as moral sense, or common sense ; and
would be as good a foundation for a system. Such an act is unnatural ;
that is, repugnant to nature : for I do not like to practise it : and, conse-
quently, do not practise it. It is therefore repugnant to what ought to be
the nature of every body else.
Mischief they The mischief common to all these ways of thinking and arguing (which,

ii.] Of Principles adverse to that of Utility. 19

out intending any such thing. Probably more frequently

not : and hence it is that the business of penal justice is carried utility.

in truth, as we have seen, are but one and the same method, couched in
different forms of words) is their serving as a cloke, and pretence, and ali-
ment, to despotism : if not a despotism in practice, a despotism however
in disposition : which is but too apt, when pretence and power offer, to
show itself in practice. The consequence is, that with intentions very
commonly of the purest kind, a man becomes a torment either to himself
or his fellow-creatures. If ho be of the melancholy cast, he sits in silent
grief, bewailing their blindness and depravity : if of the irascible, he de-
claims with fury and virulence against all who differ from him ; blowing up
the coals of fanaticism, and branding with the charge of corruption and in-
sincerity, every man who does not think, or profess to think, as he does.

If such a man happens to possess the advantages of style, his book
may do a considerable deal of mischief before the nothingness of it is
understood.

These principles, if such they can be called, it is more frequent to see
applied to morals than to politics : but their influence extends itself to
both. In politics, as well as morals, a man will be at least equally glad of
a pretence for deciding any question in the manner that best pleases him,
without the trouble of inquiry. If a man is an infallible judge of what is
right and wrong in the actions of private individuals, why not in the
measures to be observed by public men in the direction of those actions?
accordingly (no>t to mention other chimeras) I have more than once known
the pretended law of nature set up in legislative debates, in opposition to
arguments derived from the principle of utility.

' But is it never, then, from any other considerations than those of utility, whether utility
that we derive our notions of right and wrong ? ' I do not know: I do Jff^imuS-
not care. Whether a moral sentiment can be originally conceived from any jjrtje JPPJO
other source than a view of utility, is one question: whether upon exam- bestow^ a v
ination and reflection it can, in point of fact, be actually persisted in and '
justified on any other ground, by a person reflecting within himself, is
another : whether in point of right it can properly be justified on any other
ground, by a person addressing himself to the community, is a third. The
two first are questions of speculation : it matters not, comparatively
speaking, how they are decided. The last is a question of practice : the
decision of it is of as much importance as that of any can be.

* I feel in myself,' (say you) 'a disposition to approve of such or such an
action in a moral view : but this is not owing to any notions I have of its
being a useful one to the commjunity. I do not pretend to know whether
it be an useful one or not : it may be, for aught I know, a mischievous
one.' * But is it then,' (say I) ' a mischievous one? examine ; and if you
can make yourself sensible that it is so, then, if duty means any thing, that
is, moral duty, it is your duty at least to abstain from it : and more than
that, if it is what lies in your power, and can be done without too great a
sacrifice, to endeavour to prevent it. It is not your cherishing the notion
of it in your bosom, and giving it the name of virtue, that will excuse
you.'

* I feel hi myself,' (say you again) 'a disposition to detest such or such an
action in a moral view ; but this is not owing to any notions I have of its
being a mischievous one to the community. I do not pretend to know
whether it be a mischievous one or not : it may be not a mischievous one :

02

20 Of Principles adverse to that of Utility. [CHAP.

on upon that tolerable sort of footing upon which we see it car-
ried 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.
die FslSost ^VI. The principle of sympathy and antipathy is most apt to

te s?de r of n err on *^ e S ^ G ^ sever ^y I* * s ^ or a Pplyi n g punishment in
severity. 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 dis-
agreement 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 x . This is one of the circum-

it may be, for aught I know, an useful one.' 'May it indeed,' (say I) 'an
useful one? but let me tell you then, that unless duty, and right and wrong,
be just what you please to make them, if it really be not a mischievous one,
and any body has a mind to do it, it is no duty of yours, but, on the con-
trary, it would be very wrong in you, to take upon you to prevent him :
detest it within yourself as much as you please ; that may be a very good
reason (unless it be also a useful one) for your not doing it yourself: but if
you go about, by word or deed, to do any thing to hinder him, or make him
suffer for it, it is you, and not he, that have done wrong: it is not your
setting yourself to blame his conduct, or branding it with the name of vice,
that will make him culpable, or you blameless. Therefore, if you can make
yourself content that he shall be of one mind, and you of another, about
that matter, and so continue, it is well : but if nothing will serve you,
but that you and he must needs be of the same mind, I'll tell you what
you have to do : it is for you to get the better of your antipathy, not for
him to truckle to it.'

1 King James the First of England had conceived a violent antipathy
against Arians : two of whom he burnt \ This gratification he procured
himself without much difficulty : the notions of the times were favourable
to it. He wrote a furious book against Vorstius, for being what was called

* Hume's Hist, vol 6.

IT.] Of Principles adverse to that of Utility. <zi

stances 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 But errs, in
principle to err on the side of lenity. A near and perceptible starves, on
mischief moves antipathy. A remote and imperceptible mis- lenity. e
chief, though not less real, has no effect. Instances in proof of

this will occur in numbers in the course of the work 1 . It would
be breaking in upon the order of it to give them here.

XVIII. It may be wondered, perhaps, that in all this while The theo-.
no mention has been made of the theological principle ; meaning tijfieTwh
that principle which professes to recur for the standard of right r

and wrong to the will of God. But the case is, this is not in Clple '
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 mil 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

an Arminian : for Vorstius was at a distance. He also wrote a furious
book, called 'A Counterblast to Tobacco,' against the use of that drug,
which Sir Walter Raleigh had then lately introduced. Had the notions of
the times co-operated with him, he would have burnt the Anabaptist and
the smoker of tobacco in the same fire. However he had the satisfaction
of putting Raleigh to death afterwards, though for another crime.

Disputes concerning the comparative excellence of French and Italian
music have occasioned very serious bickerings at Paris. One of tho parties
would not have been sorry (says Mr. D'Alembert l ) to have brought govern-
ment into the quarrel. Pretences were sought after and urged. Long
before that, a dispute of like nature, and of at least equal warmth, had been
kindled at London upon the comparative merits of two composers at
London ; where riots between the approvers and disapproves of a new play
are, at this day, not unfrequent. The ground of quarrel between the Big-
endians and the Little-enclians in the fable, was not more frivolous than
many an one which has laid empires desolate. In Russia, it is said, there
was a time when some thousands of persons lost their lives in a quarrel, in
which the government had taken part, about the number of fingers to be
used in making the sign of the cross. This was in days of yore : the
ministers of Catherine II. are better instructed 2 than to take any other
part in such disputes, than that of preventing the parties concerned from
doing one another a mischief.

1 See ch. xvi. [Division], par. 42, 44.

1 Melanges Essai sur la Liberty do la Miuique. a Instruct, art. 474, 475, 476.

22 Of Principles adverse to that of Utility. [CHAP.

universally allowed, by the most eminent divines of all persua-
sions, 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 stan-
dard 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 on account 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 1 .
Antipathy, XIX. There are two things which are very apt to be con-

tions it die- founded, but which it imports us carefully to distinguish : the
tatesbeever ,. . . , , ,. ., . , . . ,.

so right, is motive or cause, which, by operating on the mind of an indi-
SFa right vidual, is productive of any act : and the ground or reason which

The principle * The principle of theology refers every thing to God's pleasure. But
how'reducfwe what is God's pleasure? God does not, he confessedly does not now, either
otheTof t e n " 8 P ea ^ or wr ^ >G * us - How then are we to know what is his pleasure? By
other three 8 observing what is our own pleasure, and pronouncing it to be his. Accord-
prmcipies. ingly,what is called the pleasure of God, is and must necessarily be (revela-
tion apart) neither more nor less than the good pleasure of the person,
whoever he be, who is pronouncing what he believes, or pretends, to be
God's pleasure. How know you it to be God's pleasure that such or such
an act should be abstained from ? whence come you even to suppose as
much ? ' Because the engaging in it would, I imagine, be prejudicial upon
the whole to the happiness of mankind ; ' says the partizan of the principle
of utility : * Because the commission of it is attended with a gross and
sensual, or at least with a trifling and transient satisfaction ; ' says the par
tizan of the principle of asceticism : ' Because I detest the thoughts of it ;
and I cannot, neither ought I to be called upon to tell why ; ' says he who
proceeds upon the principle of antipathy. In the words of one or other of
these must that person necessarily answer (revelation apart) who professes
to take for his standard the will of God.

ii.] Of Principles adverse to that of Utility. 23

warrants a legislator, or other by-stander, in regarding that act ground of
with an eye of approbation. When the act happens, in the par-
ticular 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 before-
hand 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 im-
plicitly 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 modi-
fication 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 action, and of approbation, in 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 its doing mischief : to be regulated
by what ? always by the principle of utility. The principle
of utility neither requires nor admits of any other regulator
than itself.

CHAPTER III.

OF THE FOUR SANCTIONS OR SOURCES OF PAIN AND PLEASURE.

Connexion I. IT has been shown that the happiness of the individuals, of
chapterwith whom a community is composed,that is their pleasures and their
ceding. 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 plea-
sure and pain are in use to flow : considered separately, they
may be termed the physical, the political, the moral, and the re-
ligious : 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 be termed sanctions l .

1 Sanctio, in Latin, was used to signify the act of binding, and, by a
common grammatical transition, any thing which serves to bind a man : to
wit, to the observance of such or such a mode of conduct. According to a
Latin grammarian *, the import of the word is derived by rather a far-fetched
process (such as those commonly are, and in a great measure indeed must
be, by which intellectual ideas are derived from sensible ones) from the
word sanguis, blood : because, among the Romans, with a view to inculcate
into the people a persuasion that such or such a mode of conduct would be

1 Servius. See A ins worth's Diet, ad verbum Sanctio.

Pour sanc-
tions or
sources of
pleasure
and pain.

Of the Four Sanctions or Sources of Pain and Pleasure. 25

III. If it be in the present life, and from the ordinary course 1 - The
of nature, not purposely modified by the interposition of the sanction,
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 2. The
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, 3. The moral

. - -, . i-f or popular.

as the party in question may happen in the course of his life to
have concerns with, according to each man's spontaneous dispo-
sition, and not according to any settled or concerted rule, it may
be said to issue from the moral or popular sanction 1 .

VI. If from the immediate hand of a superior invisible being, 4. The
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 Thepiea-

J sures and

the physical, political, or moral sanctions, must all of them be pins which
expected to be experienced, if ever, in the present life : those the religious
which may be expected to issue from the religious sanction, may may regard
be expected to be experienced either in the present life or in a present life

. or a future.

future.

rendered obligatory upon a man by the force of what I call the religious
sanction (that is, that he would be made to suffer by the extraordinary
interposition of some superior being, if he failed to observe the mode of
conduct in question) certain ceremonies were contrived by the priests :
in the course of which ceremonies the blood of victims was made use of.

A Sanction then is a source of obligatory powers or motives : that is, of
pains and pleasures ; which, according as they are connected with such or
such modes of conduct, operate, and are indeed the only things which can
operate, as motives. See Chap. x. [Motives].

1 Better termed popular, as more directly indicative of its constituent
cause ; as likewise of its relation to the more common phi ase public opinion,
in French opinion publique, the name there given to that tutelary power,
of which of late so much is said, and by which so much is done. The latter
appellation is however unhappy and inexpressive ; since if opinion is mate-
rial, it is only in virtue of the influence it exercises over action, through
the medium of the affections and the will.

2,6 Of the Four Sanctions or [CHAP.

Those which VIII. Those which can be experienced in the present life,
present life, can of course be no others than such as human nature in the
soever course of the present life is susceptible of : and from each of
flow?differ y these sources may flow all the pleasures or pains of which, in
circum- e the course of the present life, human nature is susceptible. With
their 680 regard to these then (with which alone we have in this place
production. 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 impru-
dence 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 with-
holden, a punishment issuing from the moral sanction; if through
the immediate interposition of a particular providence, a punish-
ment issuing from the religious sanction.

Example. 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 punish-
ment 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 punish-
ment : if for want of any assistance which his neighbour with-
held 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,manif estedon account of some sin committedby
him, or through any distraction of mind, occasioned by the dread
of such displeasure, a punishment of the religious sanction \

1 A suffering conceived to befall a man by the immediate act of God, as
above, is of ten, for shortness' sake, called a judgment: instead of saying, a

in.] Sources of Pain and Pleasure. 27

X. As to such of the pleasures and pains belonging to the Those which
religious sanction, as regard a future life, of what kind these fufureHfe
may be we cannot know. These lie not open to our observation, specifically
During the present life theyare matter only of expectation: and, nown *
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 lie 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 1 .

XI. Of these four sanctions the physicalis altogether, we may The physical
observe, the ground-work of the political and the moral : so is included in
it also of the religious, in as far as the latter bears relation to other three,
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 plea-
sures 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 ques-
tion supposed to operate, but through the powers of nature.

XII. For these four objects, which in their nature have so Use of this
much in common, it seemed of use to find a common name. cmp

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 effi-
cacy 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

suffering inflicted on him in consequence of a special judgment formed,and
resolution thereupon taken, by the Deity.
1 See ch. xiii. [Cases unmeet] par. 2. note.

28 Of the Four Sanctions or Sources of Pain and Pleasure.

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

which the legislator has in view : it behoves him therefore to ap
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 circum-

i i 7 7/ -11 T. ^ i T , stances tobe

or pain considered &?/ itself 9 will be greater or less, according to taken into

.,,,..* T the account

the four following circumstances L : in estimat-

T-L , v, ingthe

1. Its intensity. value of a
T , , .. pleasure or

2. Its duration. paincon-

TJ . . . . sidered with

3. Its certainty or uncertainty. reference to

4. Its propinquity or remoteness. non*.nd

III. These are the circumstances which are to be considered y ltself *
in estimating a pleasure or a pain considered each of them by sTdered as
itself. But when the value of any pleasure or pain is considered Sith other
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,

1 These circumstances have since been denominated dements or dimen-
sions of value in a pleasure or a pain.

Not long after the publication of the first edition, the following memo-
riter verses were framed, in the view of lodging more effectually, in the
memory, these points, on which the whole fabric of morals and legislation
may be seen to rest.

Intense, long, certain, speedy, fruitful, pure

Such marks in pleasures and in pains endure.

Such pleasures seek if private be thy end :

If it be public, wide let them extend.

Such pains avoid, whichever be thy view :

If pains must come, let them extend to few.

30 Value of a Lot of Pleasure or Pain> [CHAP.

5. Its fecundity, or the chance it has of being followed by
sensations of the same kind : that is, pleasures, if it be a plea-
sure : 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, there-
fore, 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 plea-
sure or pain has been produced ; and accordingly are only to be
taken into the account of the tendency of such act or such event.
"7, con : ..i IV. To a number of persons, with reference to each of whom

sidered with r ; . .

reference to the value of a pleasure or a pain is considered, it will be greater
a number of t _f \ . , 7

persons. or less, according to seven circumstances : to wit, the six pre-
ceding ones ; viz.

1. Its intensity.

2. Its duration.

3. Its certainty or uncertainty.

4. Its propinquity or remoteness.

5. Us 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.

Process for V. To take an exact account then of the general tendency of
the ten- any act, by which the interests of a community are affected,

dencyofany * T> -,i t , i i

act or event, 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 thejirst 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

iv.] liow to be Measured. 31

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 th&tindividual 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 re-
spect to each. Sum up the numbers expressive of the degrees
of good tendency, which the act has, with respect to each indi-
vidual, 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 indi-
viduals concerned; if on the side of pain,the general eviltendency,
with respect to the same community.

VI. It is not to be expected that this process should be strictly Use of the
pursued previously to every moral judgment, or to every legis- p%^ss! 8
lative 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 The same

T -i-ii T process ap-

pain, in whatever shape they appear : and by whatever denom- plicabie to

ination they are distinguished : to pleasure, whether it be called Srii, profit
good (which is properly the cause or instrument of pleasure) or chief, and ail
profit (which is distant pleasure, or the cause or instrument of ficationsof
distant pleasure,) or convenience, or advantage, benefit, emoilw-pa1i! urea11
ment, happiness , and so forth : to pain, whether it be called evil,

3 2 Value of a Lot of Pleasure or Pain, how to be Measured.

(which corresponds to good) or mischief, or inconvenience, or
disadvantage, or loss, or unhappiness, and so forth.
Conformity VIII. Nor is this a novel and unwarranted, any more than it

of men s . .

practice to is a useless theory. In all this there is nothing but what the

this theory.

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 ac-
cording 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, be-
cause it depends upon the use which each particular person may
come to make of it ; which cannot be estimated till the par-
ticular 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 fe-
cundity 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 Pleasures

and pains alike, we come now to exhibit, each by itself, the are either

* , t 11 T -i i 1 - Simple :

several sorts of pains and pleasures. Pains and pleasures may or, 2. Com-

be called by one general word, interesting perceptions. Interest-
ing 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, I. Of pleasures alone : 2. Of pains alone :
or, 3. Of a pleasure or pleasures, and a pain or pains to-
gether. What determines a lot of pleasure, for example, to be
regarded as one complex pleasure, rather than as divers simple l>
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 The simple
susceptible, seem to be as follows : I. The pleasures of sense, enlmiemted.
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 plea-
sures of memory, n. The pleasures of imagination. 12. The
pleasures of expectation. 13. The pleasures dependent on asso-
ciation. 14. The pleasures of relief.

III. The several simple pains seem to be as follows : I. The The simple
pains of privation. 2. The pains of the senses. 3. The pains of enumerated.

BENTHAM Tfc

34 Pleasures and Pains. [CHAP.

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. II. The pains of expectation.
12. The pains dependent on association *.

Pleasures of IV. I. The pleasures of sense seem to be as follows : I, The
merated. 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 plea-
sure 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 moderatebodily 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 2 .

Pleasures of V. 2. By the pleasures of wealth may be meant those plea-

wh?ch are sures which a man is apt to derive from the consciousness of

acquisition possessing any article or articles which stand in the list of in-

session! 8 struments of en j oyment 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.

s. Pleasures 3. The pleasures of skill, as exercised upon particular objects,

of skill.

Analytical 1 The catalogue here given, is what seemed to be a complete list of the

n whynone several simple pleasures and pains of which human nature is susceptible :
insomuch, that if, upon any occasion whatsoever, a man feels pleasure or
pain, it is either referable at once to some one or other of these kinds, or
resolvable into such as are. It might perhaps have been a satisfaction to
the reader, to have seen an analytical view of the subject, taken upon an
exhaustive plan, for the purpose of demonstrating the catalogue to be what
it purports to be, a complete one. The catalogue is in fact the result of
such an analysis ; which, however, I thought it better to discard at present,
as being of too metaphysical a cast, and not strictly within the limits of this
design. See ch. xiii. [Cases unmeet], par. 2. Note.

* There are also pleasures of novelty, excited by the appearance of new
ideas : these are pleasures of the imagination. See infra xiii.

v.] Pleasure* and Pains. 35

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 1 .

VI. 4. The pleasures of amity, or self -recommendation, are the 4. Pleasures
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 spon-
taneous and gratuitous services.

VII. 5. The pleasures of a good name are the pleasures that s. Pleasures

,1 . , , , . . ,t . . A . of a good

accompany the persuasion of a man s being in the acquisition name,
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 2 .

VIII. 6. The pleasures of power are the pleasures that ac- e. Pleasures
company the persuasion of a man's being in a condition to dis- poweP '
pose people, by means of their hopes and fears, to give him the
benefit of their services: that is, by 4;he 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 7. Pleasures
the belief of a man's being in the acquisition or in possession of pie y '
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

1 For instance, the pleasure of being able to gratify the sense of hearing,
by singing, or performing upon any musical instrument. The pleasure thus
obtained, is a thing euperadded to, and perfectly distinguishable from, that
which a man enjoys from hearing another person perform in the same
manner.

* See ch. iii. [Sanctions].

D2

36 Pleasures and Pains. [CHAP.

pleasures of a religious disposition, or the pleasures of the
religious sanction J .

s. Pleasures X. 8. The pleasures of benevolence are the pleasures resulting
?ence n or~ from the view of any pleasures supposed to be possessed by the
B W1 * beings who may be the objects of benevolence ; to wit, the sensi-
tive beings we are acquainted with; under which are commonly
included, I. 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.

9. Pleasures XI. o. The pleasures of malevolence are the pleasures result-

ofmalevo-

lence or ill- ing from the view of any pain supposed to be suffered by the
beings who may become the objects of malevolence : to wit,
I. Human beings. 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.

10. Pleasures XII. io. The pleasures of the memory are the pleasures which,
memory, 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 distin-
guished 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.

ii.Pieasures XIII. ii. The pleasures of the imagination are the pleasures
hnagfnation. 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 circum-
stances. 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.

12. Pleasures XIV. 12. The pleasures of expectation are the pleasures that

1 See ch. iii. [Sanctions].

v.] Pleasures and Pains. 37

result from the contemplation of any sort of pleasure, referred of expecta-
to time future, and accompanied with the sentiment of belief.
These also may admit of the same distinctions l .

XV. 13. The pleasures of association are the pleasures which is.Pieasures
certain objects or incidents may happen to afford, not of them- on*Ssoc?
selves, but merely in virtue of some association they have con-
tracted 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 exer-
cised 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 plea-
surable 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 plea- i4.riensures

I i j j of relief.

sures; 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. i. Pains of privation are the pains that may result i. Pains of
from the thought of not possessing in the time present any of

the several kinds of pleasures. Pains of privation may accord-
ingly be resolved into as many lands 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 These in-

clude,

1 In contradistinction to these, all other pleasures may be termed plea-
sures of enjoyment.

38 Pleasures and Pains. [CHAP.

1. Pains of 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.

2. Pains of XIX. Where the enjoyment happens to have been looked for

disappoint- .,, . i

ment. with a degree of expectation approaching to assurance, and that
expectation is made suddenly to cease, it is called a pain of dis-
appointment.

^^* ^ P a * n ^ P r i ya ti n takes the name of a pain of regret
in two cases : I. 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.

XXL 2. The several pains of the senses seem to be as fol-
lows : i. 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 supe-
rior 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 ap-
plication 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 1 . The pains resulting from

pl easi } re * tk e sexual sense seems to have no positive pain to
correspond to it : it has only a pain of privation, or pain of the mental

v.] Pleasures and Pains. 39

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 x . The pains of awkwardness are the pains which 3. Pains of

awkward-

sometimes result from the unsuccessful endeavour to apply any ness,
particular instruments of enjoyment or security to their uses, or
from the difficulty a man experiences in applying them 2 .

XXIII. 4. The pains of enmity are the pains that may accom- 4. Pains of
pany 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 ac-s. Painsof
company the persuasion of a man's being obnoxious, or in a way an * " name '
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 dis-
honour, or the pains of the moral sanction 3 .

class, the pain of unsatisfied desire. If any positive pain of body result pleasure of the
from the want of such indulgence, it belongs to the head of pains of disease. sexual sense *

1 The pleasures of novelty have no positive pains corresponding to them. NO positive
The pain which a man experiences when he is in the condition of not know- SoJ^tothe
ing what to do with himself, that pain, which in French is expressed by a pleasure of
single word ennui, is a pain of privation: a pain resulting from the absence, novelt ^
not only of all the pleasures of novelty, but of all kinds of pleasure whatso-
ever.

The pleasures of wealth have also no positive pains corresponding to _ n or to those
them : the only pains opposed to them are pains of privation. If any posi- of wealth.
tive pains result from the want of wealth, they are referable to some other
class of positive pains ; principally to those of the senses. From the want
of food, for instance, result the pains of hunger; from the want of clothing,
the pains of cold ; and so forth.

* It may be a question, per haps, whether this bo a positive pain of itself, is this a djs-
or whether it be nothing more than a pain of privation, resulting from the {Jjfiwfoniyli
consciousness of a want of skill. It is, however, but a question of words, pain of
nor does it matter which way it be determined. privation?

3 In as far as a man's fellow-creatures are supposed to be determined by The positive
any event not to regard him with any degree of esteem or good will, or to SJ^JJS
regard him with a less degree of esteem or good will than they would other- pains of priva-

40 Pleasures and Pains. [CHAP.

6. Pains of 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 2 .

7. Pains of 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.

8. Pains of XXVII. 8. The pains of malevolence are the pains resulting
malevolence.- , , . - . i , r i i_

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,
o. Pains of XXVIII. o. The pains of the memory may be grounded on

thememory. / 1,1-1 ,1 r t : x-

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.
10. Pains of XXIX. io. Thepains of the imaginationmayalso be grounded

tion, opposed wise ; not to do him any sorts of good offices, or not to do him so many
pleasures of a 0?^ ffi ces as they would otherwise ; the pain resulting from such consider-
good name, ation may be reckoned a pain of privation : as far as they are supposed to
another. 0110 regard him with such a degree of aversion or disesteem as to be disposed to

do him positive ill offices, it may be reckoned a positive pain. The pain of

privation, and the positive pain, in this case run one into another indis-

tinguishably.

NO positive ! There seem to be no positive pains to correspond to the pleasures of
?pond c t "t e hc power. The pains that a man may feel from the want or the loss of power,
power* 65 f * n as * ar as P owcr * s distinguished from all other sources of pleasure, seem

to be nothing more than pains of privation.

The positive The positive pains of piety, and the pains of privation, opposed to the
and the pains' pleasures of piety, run one into another in the same manner as the positive
of privation, pains of enmity, or of an ill name, do with respect to the pains of privation,

opposed to tne jjjii t I -i ji < i V* -i j

pleasures of opposed to the pleasures of amity, and those of a good name. If what is
apprehended at the hands of God is barely the not receiving pleasure, the
pain is of the privative class : if, moreover, actual pain be apprehended, it
is of the class of positive pains.

v.] Pleasures and Pains. 41

on any one of the above kinds, as well of pains of privation as the imagina-.
of positive pains : in other respects they correspond exactly to
the pleasures of the imagination.

XXX. ii. The pains of expectation may be grounded on each u-
one of the above kinds, as well of pains of privation as of posi-
tive pains. These may be also termed pains of apprehension \

XXXI. 12. The pains of association correspond exactly to 12. Pains of

. , ... association

the pleasures 01 association.

XXXII. Of the above list there are certain pleasures and Pleasures

, . , ,, . , , , . and pains

pains which suppose the existence or some pleasure or pain are either
of some other person, to which the pleasure or pain of the per- ing o^extra,
son in question has regard : such pleasures and pains may be regar Ulg *
termed extra-regarding. Others do not suppose any such thing :
these may be termed self-regarding 2 . The only pleasures and
pains of the extra-regarding class are those of benevolence and
those of malevolence : all the rest are self -regarding 3 .

XXXIII. Of all these several sorts of pleasures and pains, there in what
is scarce any one which is not liable, on more accounts than one, law is con-
to come under the consideration of the law. Is an offence com- the above
mitted ? It is the tendency which it has to destroy, in such or pleasures,
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 consti-
tutes the profit of the offence. 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 4 .

1 In contradistinction to these, all other pains may be termed pains of
sufferance.

2 See chap. x. [Motives].

3 By this means the pleasures and pains of amity may be the more Pleasures and
clearly distinguished from those of benevolence : and on the other hand, Jn d n e nni?ty lty
those of enmity from those of malevolence. The pleasures and pains of distinguished
amity and enmity are of the self -regarding cast : those of benevolence and benevolence 3
malevolence of the extra-regarding. f^e 16 "

* It would be a matter not only of curiosity, but of some use, to exhibit complex
a catalogue of the several complex pleasures and pains, analyzing them at P^ u r
the same time into the several simple ones, of which they are respectively why,

43 Pleasures and Pains.

composed. But such a disquisition would take up too much room to be ad-
mitted here. A short specimen, however, for the purpose of illustration,
can hardly be dispensed with.

specimen. The pleasures taken in at the eye and ear are generally very complex.

coSnttJ* 5 The pleasures of a country scene, for instance, consist commonly, amongst

prospect. others, of the following pleasures :

I. Pleasures of the senses.

1. The simple pleasures of sight, excited by the perception of agreeable
colours and figures, green fields, waving foliage, glistening water, and the
like.

2. The simple pleasures of the ear, excited by the perceptions of the
chirping of birds, the murmuring of waters, the rustling of the wind among
the trees.

3. The pleasures of the smell, excited by the perceptions of the fragrance
of flowers, of new-mown hay, or other vegetable substances, in the first
stages of fermentation.

4. The agreeable inward sensation, produced by a brisk circulation of
the blood, and the ventilation of it in the lungs by a pure air, such as that
in the country frequently is in comparison of that which is breathed in
towns.

II. Pleasures of the imagination produced by association.

1 . The idea of the plenty, resulting from the possession of the objects
that are in view, and of the happiness arising from it.

2. The idea of the innocence and happiness of the birds, sheep, cattle,
dogs, and other gentle or domestic animals.

3. The idea of the constant flow of health, supposed to be enjoyed by all
these creatures : a notion which is apt to result from the occasional flow of
health enjoyed by the supposed spectator.

4. The idea of gratitude, excited by the contemplation of the all-powerful
and beneficent Being, who is looked up to as the author of these blessings.

These four last are all of them, in some measure at least, pleasures of
sympathy.

The depriving a man of this groupe of pleasures is one of the evils apt to
result from imprisonment ; whether produced by illegal violence, or in the
way of punishment, by appointment of the laws.

CHAPTER VI.

OF CIRCUMSTANCES INFLUENCING SENSIBILITY.

I. PAIN and pleasure are produced in men's minds by the Pain and

. -r i -i

action of certain causes. But the quantity of pleasure and pain uniformly
runs not uniformly in proportion to the cause ; in other words, tioned to
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 Degree or
quantity of pleasure or pain, upon the application of a cause of of sen'sttn-
given force, is what we term the degree or quantum of his llty ' wha '
sensibility. This may be either general, referring to the sum

of the causes that act upon him during a given period : or 'par-
ticular, 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 Bias or
pleasure will produce more pain or pleasure than such or such sensibility,
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

44 Of Circumstances influencing Sensibility. [CHAP.

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.
Exciting IV. Any incident which serves as a cause, either of pleasure

causes

pleasurable or of pain, may be termed an exciting cause : if of pleasure, a

anddolorific. . ' . , .*,/.. i , /

pleasurable cause : if of pain, a painful, afflictive, or dolormc

cause \

circum- V. Now the quantity of pleasure, or of pain, which a man is

stances in- r ,. , " J * ' A . r , '

fluencm* liable to experience upon the application of an exciting cause,
what. l y ' since they will not depend altogether upon that cause, will de-
pend in some measure upon some other circumstance or circum-
stances: these circumstances, whatsoever they be, may be termed
circumstances influencing sensibility 2 .
Circum- VI. These circumstances will apply differently to different

stances in- .,. . 1,1,,,-

fluencing exciting causes ; insomuch that to a certain exciting cause, a
enumerated, certain circumstance shall not apply at all, which shall apply
with great force to another exciting cause. But without enter-
ing 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 maybe as well first to sum up together in the concisest manner
possible, and afterwards to allot a few words to the separate ex-
planation of eacharticle. Theyseem to be as follows: I. Health.
2. Strength. 3. Hardiness. 4. Bodily imperfection. 5. Quan-
tity and quality of knowledge. 6. Strength of intellectual
powers. 7. Firmness of mind. 8. Steadiness of mind. 9. Bent
of inclination. 10. Moral sensibility, n. Moral biases. 12. Re-

1 The exciting cause, the pleasure or pain produced by it, and the inten-
tion produced by such pleasure or pain in the character of a motive, are
objects so intimately connected, that, in what follows, I fear I have not, on
every occasion, been able to keep them sufficiently distinct. I thought it
necessary to give the reader this warning ; after which, should there bo
found any such mistakes, it is to be hoped they will not be productive of
much confusion.

2 Thus, in physical bodies, the momentum of a ball put in motion by
impulse, will be influenced by the circumstance of gravity : being in some
directions increased, in others diminished by it. So in a ship, put in motion
by the wind, the momentum and direction will be influenced not only by
the attraction of gravity, but by the motion and resistance of the water, and
several other circumstances.

vi.] Of Circumstance* influencing Sensibility. 45

ligious sensibility. 13. Religious biases. 14. Sympathetic sen-
sibility. 15. Sympathetic biases. 16. Antipathetic sensibility.
17. Antipathetic biases. 18. Insanity. 19. Habitual occupa-
tions. 20. Pecuniary circumstances. 21. Connexions in the
way of sympathy. 22. Connexions in the way of antipathy.
23. Radical frame of body. 24. Radicalframe of mind. 25. Sex.
26. Age. 27. Rank. 28. Education. 29. Climate. 30. Lineage.
31. Government. 32. Religious profession 1 .

VII. I. Health is the absence of disease, and consequently of i. Health,
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 2 . In point of

1 An analytical view of all these circumstances will be given at the con- Extent and in.
elusion of the chapter : to which place it was necessary to refer it, as itJu{;JJJt. ofthls
could not well have been understood, till some of them had been previously
explained.

To search out the vast variety of exciting or moderating causes, by which
the degree or bias of a man's sensibility may be influenced, to define the
boundaries of each, to extricate them from the entanglements in which they
are involved, to lay the effect of each article distinctly before the reader's
eye, is, perhaps, if not absolutely the most difficult task, at least one of the
most difficult tasks, within the compass of moral physiology. Disquisitions
on this head can never be completely satisfactory without examples. To
provide a sufficient collection of such examples, would be a work of great
labour as well as nicety : history and biography would need to be ran-
sacked : a vast course of reading would need to bo travelled through on
purpose. By such a process the present work would doubtless have been
rendered more amusing ; but in point of bulk, so enormous, that this single
chapter would have been swelled into a considerable volume. Feigned
cases, although Jhey may upon occasion serve to render the general matter
tolerably intelligible, can never be sufficient to render it palatable. On
this therefore, as on so many other occasions, I must confine myself to dry
and general instruction : discarding illustration, although sensible that
without it instruction cannot manifest half its efficacy. The subject, how-
ever, is so difficult, and so new, that I shall think I have not ill succeeded,
if , without pretending to exhaust it, I shall have been able to mark out the
principal points of view, and to put the matter in such a method as may
facilitate the researches of happier inquirers.

The great difficulty lies in the nature of the words; which are not, like
pain and pleasure, names of homogeneousrealentities,but names of various
fictitious entities, for which no common genus is to be found : and which
therefore, without a vast and roundabout chain of investigation, can never
be brought under any exhaustive plan of arrangement, but must be picked
up here and there as they happen to occur.

* It mav be thought, that in a certain degree of health, this negative
account of the matter hardly comes up to the case. In a certain degree of

46 Of Circumstances influencing Sensibility. [CHAV.

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.

2. strength. VIII. 2. The circumstance of strength, though in point of

causality closely connected with that of health, is perfectly dis-
tinguishable 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 circum-
stance : strength a positive one. The degree of a man's strength
can be measured with tolerable accuracy *.

3. Hardi- IX. 3. Hardiness is a circumstance which, though closely con-

nected with that of strength, is distinguishable from it. Hardi-
ness 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. Irrita-
bility, in the former sense, is the disposition to undergo a greater

health, there is often such a kind of feeling diffused over the whole frame,
such a comfortable feel, or flow of spirits, as it is called, as may with pro-
priety come under the head of positive pleasure. But without experiencing
any such pleasurable feeling, if a man experience no painful one, he maybe
well enough said to be in health.

Measure of * The most accurate measure that can be given of a man's strength, seems
weigh? a'raan to be thatwhich is taken from the weight or number of pounds and ounces
can lift. he can lift with his hands in a given attitude. This indeed relates imme-
diately only to his arms : but these are the organs of strength which are
most employed ; of which the strength corresponds with most exactness to
the general state of the body with regard to strength ; and in which the
quantum of strength is easiest measured. Strength may accordingly be
distinguished into general and particular.

weakness, Weakness is a negative term, and imports the absence of strength. It
whati is, besides, a relative term, and accordingly imports the absence of such a

quantity of strength as makes the share, possessed by the person in ques-
tion, less than that of some person he is compared to. Weakness, when it
is at such a degree as to make it painful for a man to perform the motions
necessary to the going through the ordinary functions of life, such as to get
up, to walk, to dress one's self, and so forth, brings the circumstance of
health into question, and puts a man into that sort of condition in which
he is said to be in ill health.

vi.] Of Circumstances influencing Sensibility. 47

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 instru-
ment 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 im-
mediate 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 isopposedto the action Difference
of mechanical causes, is distinguishable from strength. The ex- strength
ternal indications of strength are the abundance and firmness of ness. " l "
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 con- f Bodily
dition which a person is in, who either stands distinguished by lion? ^
any remarkable deformity, or wants any of those parts or facul-
ties, 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 whict differences will be taken notice of in
their proper places \

XL 5. So much for circumstances belonging to the condition s. Quantity

of the body : we come now to those which concern the con-ofkn q ow- 1

ledge.
1 See B. I. Tit. [Irrep. corp. Injuries].

48 Of Circumstances influencing Sensibility. [CHAP.

dition 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 store,
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.
6 strength XII. 6. By strength of intellectual powers may be understood

ofintellec- ., , J , . r f , . , . . \. ,

tual powers, the degree ot facility which a man experiences in his endeavours

to call to mind as well such ideas as have been already aggre-
gated 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 apprehen-
sion, 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.

7. Firmness XIII. 7. Firmness of mind on the one hand, and irritability
of inmd. on t j ie Qtj^ rc g ar( j the proportion between the degrees of effi-
cacy 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 1 . 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 2 ; of an irritable mind, when the contrary is the
case.

1 See chap. iv. [Value].

2 When, for instance, having been determined, by the prospect of some

vi.] Of Circumstances influencing Sensibility. 49

XIV. 8. Steadiness regards the time during which a given 8. steadi-
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 1 .

XV. a. By the bent of a man's inclinations may be under- 9- Bent of

j. j At. -j. i i ^i f inclinations,

stood the propensity he has to expect pleasure or pain from cer-
tain 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 inti-
mately connected with that of the bias of a man's sensibility, is
not undistinguishablefrom 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 ex-
pectations 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, 10. Moral

, . ., .,. , , , T, , .if sensibility.

and antipathetic sensibility, when closely considered, will appear
to be included in some sort under that of bent of inclination. On

inconvenience, not to disclose a fact, although he should be put to the rack,
he perseveres in such resolution after the rack is brought into his presence,
and even applied to him.

1 The facility with which children grow tired of their play-things, and
throw them away, is an instance of unsteadiness : the perseverance with
which a merchant applies himself to his traffic, or an author to his book,
may be taken for an instance of the contrary. It is difficult to judge of the
quantity of pleasure or pain in these cases, but from the effects which it
produces in the character of a motive : and even then it is difficult to pro-
nounce, whether the change of conduct happens by the extinction of the old
pleasure or pain, or by the intervention of a new one.

BENTHAM

50 Of Circumstances influencing Sensibility. [CHAP.

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 sanc-
tion 1 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.

11. Moral XVII. ii. 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.

12. Religious XVIII. 12. What has been said with regard to moral sensi-
sensi i ity. j^j^ ma y ^ Q applied, mutatis mutandis, to religious.

is. Religious XIX. 13. What has been said with regard to moral biases,

V)inooa

may also be applied, mutatis mutandis, to religious biases.
14 Sympa. XX. 14. By sympathetic sensibility is to be understood the
sibiilty. n propensity that a man has to derive pleasure from the happi-
ness, 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.

15. Sympa- XXI. 15. Sympathetic bias regards the description of the
theticbiSes. ,. , Ji v- . * > 4.1. j *i.v

parties who are the objects of a man s sympathy : and of the
1 See ch. v. [Pleasures and Fains].

vi.] Of Circumstances influencing Sensibility. 51

acts or other circumstances of or belonging to those persons,
by which the sympathy is excited. These parties may be,
I. 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 sym-
pathy 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 16, 17. An-
are just the reverse of sympathetic sensibility and sympathetic sen^ibwty
biases. By antipathetic sensibility is to be understood the pro- and bmsM '
pensity 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 is. Insanity.
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, 19. Habi-
are to be understood, on this occasion, as well those which he patio. 1 *'
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
so much the more distressing. A man's habitual occupations,

E 2

53 Of Circumstances influencing Sensibility. [CHAP.

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.

n?aiy e cir- XXV. 20. Under the head of pecuniary circumstances, I
cumstances. 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 : I. His property. 2. The
profit of his labour. 3. His connexions in the way of support.
His wants seem to depend upon four circumstances. I. 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 under-
stood, 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 princi-
pally, 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 assist-
ances, 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

VT.] Of Circumstances influencing Sensibility. 53

with it 1 ) would not even subsist at all, but for previous enjoy-
ment. By a man's connexions in the way of burthen, are to be
understood whatever expense he has reason to look upon him-
self as bound to be at in the support of those who by law, or the
customs of the world, are warranted in looking up to him for
assistance; such as children, poor relations, superannuated ser-
vants, 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, com-
monly will not be affected by it at all.

XXVI. 21. Under the head of a man's connexions in the 21. Con-
way of sympathy, I would bring to viewthe number and descrip- "he way of
tion of the persons in whose welfare he takes such a concern, as sympat y
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 in-
timate friends. This class of persons, it is obvious, will for the
most part include the two classes by which his pecuniary circum-
stances 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 per-
1 See ch. v. [Pleasures and Pains],

54 Qf Circumstances influencing Sensibility. [CHAP.

fectly 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 plea-
surable 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 plea-
sure 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 1 .

Nor does this effect depend wholly upon affection. Among
near relations, although there should be no kindness, the plea-
sures 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 cer-
tain distance within the circle of his family. What reflects
honour upon the father, reflects honour upon the son : what re-
flects disgrace, disgrace. The cause of this singular and seem-
ingly unreasonable circumstance (that is, its analogy to the rest

1 This is one reason why legislators in general like better to have married
people to deal with than single; and people that have children than such
as are childless. It is manifest that the stronger and more numerous a
man's connexions in the way of sympathy are, the stronger is the hold
which the law has upon him. A wife and children are so many pledges a
man gives to the world for his good behaviour.

vi.] Of Circumstances influencing Sensibility. 55

of the phenomena of the human mind,) belongs not to the pre-
sent purpose. It is sufficient if the effect be beyoncj dispute.

XXVII. 22. Of a man's connexions in the way of antipathy, 22. Con-
there needs not any thing very particular to be observed. Hap- ?h"wayof
pily there is no primaeval and constant source of antipathy i n antlpat y *
human nature, as there is of sympathy. There are no permanent

sets of persons who are naturally and of course the objects of an-
tipathy to a man, as there are who are the objects of the con-
trary 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 con-
nected 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 an-
tipathy against those who are objects of sympathy, to him.

XXVIII. 23. Thus much for the circumstances by which the 23. Radical
effect of any exciting cause may be influenced, when applied body?
upon any given occasion, at any given period. But besides

these supervening incidents, there are other circumstances re-
lative to a man, that may have their influence, and which are
co-eval 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 subse-
quently interveV ; circumstances, renders him liable to be

56 Of Circumstances influencing Sensibility. [CHAP.

affected by causes producing bodily pleasure or pain, in a
manner (Jifferent 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 ori-
ginal or radical frame, texture, constitution, or temperament
of body.

rrline or* 1 XXIX. 2 4- In the next place, it seems to be pretty well
mind. agreed, that there is something also in the original frame or
texture of every man's mind, which, independently of all ex-
terior 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 *.
Thisdistinct XXX. It seems pretty certain, all this while, that a man's

from the cir- ... . .

cumstance sensibility to causes producing pleasure or pain, even of mind,
body ; may depend in a considerable degree upon his original and ac-
quired 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 2 .

idiosyncrasy, * The characteristic circumstances whereby one man's frame of body or

what. mind, considered at any given period, stands distinguished from that of

another, have been comprised by metaphysicians and physiologists under

the name idiosyncrasy, from tSioy, peculiar, and avvicpaats, composition.

whether the * Those who maintain, that the mind and the body are one substance,

rfaf oHmmate. mav ^ ere bj ec t, that upon that supposition the distinction between frame

rial makesno 6 * of mind and frame of body is but nominal, and that accordingly there is no

difference. B vch thing as a frame of mind distinct from the frame of body. But grant-

ing, for argument-sake, the antecedent, we may dispute the consequence.

For if the mind be but a part of the body, it is at any rate of a nature very

different from the other parts of the body.

A man's frame of body cannot in any part of it undergo any considerable
alteration without its being immediately indicated by phenomena discern-
ible by the senses. A man's frame of mind may undergo very considerable
alterations, his frame of body remaining the same to all appearance ; that

vi.] Of Circumstances influencing Sensibility. 57

XXXI. It seems indisputable also, that the different sets of JJ
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 Yet the r-

- - 5 T/. 1-1 .suit of them

no period in the active part of a man s life can they either of is not sepa-

mtclv ells*

them make their appearance by themselves. All they do Is to cernibie.
constitute the latent ground- work 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 Frame of
reason, as probable indications of the temperature of the mind.

But they are far enough from conclusive. A man may exhibit, ! that of 1 "
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 remark-
ably profuse in tears 1 . Many men can command the external ap-
pearances of sensibility with very little real feeling 2 . The female

is, for any thing that is indicated to the contrary by phenomena cognizable
to the senses : meaning those of other men.

1 Hume's Hist.

1 The quantity of the sort of pain, which is called grief, is indeed hardly
to be measured by any external indications. It is neither to be measured,
for instance, by the quantity of the tears, nor by the number of moments

by the pulse. A man has not the motions of his heart at command as he
has those of the muscles of his face. But the particular significancy of
these indications is still very uncertain. All they can express is, that the
man is affected ; they cannot express in what manner, nor from what cause.
To an affection resulting in reality from such or such a cause, he may give

58 Of Circumstances influencing Sensibility. [CHAP.

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 cir-
cumstances. Those 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 ob-
servation. 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.

25. Sex. 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 in-

an artificial colouring, and attribute it to such or such another cause. To
an affection directed in reality to such or such a person as its object, he
may give an artificial bias, and represent it as if directed to such or such
another object. Tears of rage he may attribute to contrition. The concern
ho feels at the thoughts of a punishment that awaits him, he may impute
to a sympathetic concern for the mischief produced by his offence.

A very tolerable judgment, however, may commonly be formed by a dis-
cerning mind, upon laying all the external indications exhibited by a man
together, and at the same time comparing them with his actions.

A remarkable instance of the power of the will, over the external indica-
tions of sensibility, is to be found in Tacitus's story of the Roman soldier,
who raised a mutiny in the camp, pretending to have lost a brother by the
lawless cruelty of the General. The truth was, he never had had a brother.

vi.] Of Circumstances influencing Sensibility. 59

I ferior: 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 prin-
ciple of utility ; a difference that may be pretty well accounted
for by some of the before-mentioned circumstances. Her sym-
pathetic biases are in many respects different ; for her own off-
spring 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 ex-
panding 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 di-
vision, 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 know-
ledge, discernment, and comprehension. Her habitual occupa-
tions of the amusing kind are apt to be in many respects dif-
ferent 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 26. Age.
which the number and limits are by no means uniformly ascer-
tained. One might distinguish it, for the present purpose, into,
I. Infancy. 2. Adolescence. 3. Youth. 4. Maturity. 5. De-
cline. 6. Decrepitude. It were lost time to stop on the present
occasion to examine it at each period, and to observe the indi-

60 Of Circumstances influencing Sensibility. [CHAP.

cations it gives, with respect to the several primary circum-
stances just reviewed. Infancy and decrepitude are commonly
inferior to the other periods, in point of health, strength, hardi-
ness, 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.

27. Hank. XXXVII. 2j. Station, or rank in life, is a circumstance,

that, among a civilized people, will commonly undergo a multi-
plicity of variations. Cceteris 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: i. 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, n. 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 de-
pendents 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.

28. Educa- XXXVIII. 28. The influence of education is still more ex-

tion.

tensive. 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 respec-
tively denote exerts itself principally, if not entirely, through
the medium of certain of the primary circumstances before

vi.] Of Circumstances influencing Sensibility. 61

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 phy-
sical 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 affec-
tions. 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, re-
ligious, 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 29 Climate,
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

62 Of Circumstances influencing Sensibility. [CHAP.

merely on account of the magnitude of its influence, but also on
account of its being conspicuous to every body, and of its apply-
ing indiscriminately to great numbers at a time. This circum-
stance 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 com-
pose the earth's surface at that part, principally upon the quan-
tities 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 re-
spect 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, pro-
bably, and less hardy: their radical frame of mind less vigorous,
less firm, less steady.

so. Lineage. XL. 30. Another article in the catalogue of secondary cir-
cumstances, 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

vi.] Of Circumstances influencing Sensibility. 63

just mentioned, operates chiefly through the medium of moral,
religious, sympathetic, and antipathetic biases.

XLI. 31. The last circumstance but one, is that of govern- si. Govern-
ment : the government a man lives under at the time in ques-
tion ; 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 sensi-
bilities. Under a well-constituted, or even under a well-admi-
nistered though ill-constituted government, men's moral sensi-
bility is commonly stronger, and their moral biases more con-
formable 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 profes- 32. Religious
sion: the religious profession a man is of : the religious frater- P rofession '
nity of which he is a member. This circumstance operates
principally through the medium of religious sensibility and reli-

64 Of Circumstances influencing Sensibility. [CHAP.

gious 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 sen-
sibility : 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 immedi-
ately 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 bur-
thens it imposes *. By the force of habit and example he may
even be led to entertain a partiality for persons of the same pro-
fession, 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.

Use of the XLIII. These circumstances, all or many of them, will need
observa"* to be attended to as often as upon any occasion any account is
tions * 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 offence. Is satis-
faction to be made to him? they will need to be attended to in

1 The ways in which a religion may lessen a man's means, or augment
his wants, are various. Sometimes it will prevent him from making a
profit of his money : sometimes from setting his hand to labour. Sometimes
it will oblige him to buy dearer food instead of cheaper : sometimes to pur-
chase useless labour: sometimes to pay men for not labouring: sometimes
to purchase trinkets, on which imagination alone has set a value : some-
times to purchase exemptions from punishment, or titles to felicity in the
world to come.

vi.] Of Circumstances influencing Sensibility. 65

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 Howfartho
them, on some account or other, to merit a place in the cata- stances in
logue, they are not all of equal use in practice. Different articles bo taken iu-
among them are applicable to different exciting causes. Of those accoun '
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 reli-
gious 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 exist-
ence of them, in every sort of case, is capable of being ascer-
tained, 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, I. 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 intel-
lectual powers, firmness or steadiness of mind ; except in as far as
a man's condition, inrespect of those circumstances, may be indi-
cated by the secondary circumstances of sex, age, or rank : hardly
with that of bent of inclination,except in as far as that latent cir-
cumstance is indicated by the more manifest one of habitual oc-
cupations: 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

BENTHAM j.

66 Of Circumstances influencing Sensibility. [CHAP.

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, edu-
cation, 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.

TO what XLV. It has already been observed, that different articles in
causes there this list of circumstances apply to different exciting causes : the
slon 1 to api^Sr circumstance of bodily strength, for instance, has scarcely any
cm * 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 re-
mains 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, or
the one hand, the mischievous acts, which it is his business tc
prevent ; on the other hand, the punishments, by the terror o1
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, parti)
in conformity to his general appointment, by the special ap
Dointment of the iudee. For the legislator, therefore, as wel

vi.] Of Circumstances influencing Sensibility. 67

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 per-
sons 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 circum-
stances 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 inten-
tion 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 circum-
stances here in question. The latter of the two plans there-
fore is that which appears by far the most useful and com-

F2

68 Of Circumstances influencing Sensibility. [CHAP.

modious. But neither upon the one nor the other plan can any
such estimate be delivered here *.

XLVI. Of the several circumstances contained in this cata-

^S ue > ** ma y ^ e ^ use * S^ ve 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 dis-
positions, 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 under-
standing 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 circum-
stances of firmness of mind, steadiness,bent of inclination, moral

1 This is far from being a visionary proposal, not reducible to practice.
I speak from experience, having actually drawn up such an estimate,
though upon the least commodious of the two plans, and before the several
circumstances in question had been reduced to the precise number and
order in which they are here enumerated. This is a part of the matter
destined for another work. See ch. xiii. [Cases unmeet], par. 2. Note.
There are some of these circumstances that bestow particular denominations
on the persons they relate to: thus, from the circumstance of bodily imper-
fections, persons are denominated deaf, dumb, blind, and so forth: from the
circumstance of insanity, idiots, and maniacs : from the circumstance of
age, infants: for all which classes of persons particular provision is made in
the Code. See B. I. tit. [Exemptions]. Persons thus distinguished will
form so many articles in the catalogue perwnarum privttegiatarum. See
Appendix, tit. [Composition].

vi.] Of Circumstances influencing Sensibility. 69

sensibility, moral biases, religious sensibility, religious biases,
sympathetic sensibility, sympathetic biases, antipathetic sensi-
bility, 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 1 ;
under the latter, his connexions in the way of sympathy and
antipathy.

1 As to a man's pecuniary circumstances, the causes on which those cir- Analytical view
cumstances depend, do not come all of them under the same class. The tucnVarScS'fa
absolute quantum of a man's property does indeed come under the same * man's pecu-
class with his pecuniary circumstances in general : so does the profit he D 11 '
makes from the occupation which furnishes him with the means of liveli-
hood. But the occupation itself concerns his own person, and comes under
the same head as his habitual amusements : as likewise his habits of
expense : his connexions in the ways of profit and of burthen, under the
same head as his connexions in the way of sympathy : and the circum-
stances of his present demand for money, and strength of expectation,come
under the head of those circumstances relative to his person which regard
his affections.

CHAPTER VII.

OF HUMAN ACTIONS IN OENKHAL.

The demand I. The business of government is to promote the happiness of
ment do- the society, by punishing and rewarding. That part of its business
^rt upon which consists in punishing, is more particularly the subject of

of the act. penal law. In proportion as an act tends to disturb that happi-
ness, 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.

Tendency of II. The general tendency of an act is more or less pernicious,

an act deter. i i i r i , i

mined by its according to the sum total of its consequences : that is, accord-
quences. ing to the difference between the sum of such as are good, and
the sum of such as are evil.

Material III. It is to be observed, that here, as well as henceforward,

conse-
quences only wherever consequences are spoken of, such only are meant as

regarded, 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 1 ,
as either consist of pain or pleasure, or have an influence in the
production of pain or pleasure 2 .

1 Or of importance.

2 In certain cases tho consequences of an act maybe material by serving
as evidences indicating the existence of some other material fact, which is
even antecedent to the act of which they are the consequences : but even
here, they are material only because, in virtue of such their evidentiary
quality, they have an influence, at a subsequent period of time, in the pro-

Of Human Actions in General. 71

IV. It is also to be observed, that into the account of the con- These de-
sequences of the act, are to be taken not such only as might upon the**"
have ensued, were intention out of the question, but such also m II I0n *
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 1 , a means of producing other conse-
quences. In this lies the difference between rational agency and
irrational.

V. Now the intention, with regard to the consequences of an The inten-
act, will depend upon two things : i. The state of the will or in- as'

tention, with respect to the act itself. And, 2. The state of the standing as
understanding, or perceptive faculties, with regard to the cir- OW1 '
cumstances which it is, or may appear to be, accompanied with.
Now with respect to these circumstances, the perceptive fa-
culty is susceptible of three states : consciousness, unconscious-
ness, 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 per-
ceiving 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 in an action
a view to punishment, there are four articles to be considered : considered
i. The act itself, which is done. 2. The circumstances in which 2. We cir-'
it is done. 3. The intentionality that may have accompanied it. s

4. The consciousness, unconsciousness, or false consciousness,
that may have accompanied it.

What regards the act and the circumstances will be the sub-
ject of the present chapter : what regards intention and con-
sciousness, that of the two succeeding.

VII. There are also two other articles on which the general s. The mo-
tendency of an act depends : and on that, as well as on other disposition.

duction of pain and pleasure: for example, by serving as grounds for con-
viction, and thence for punishment. See tit. [Simple Falsehoods], verbo
[material].

1 See B. I. tit. [Exemptions] and tit. [Extenuations].

72 Of Human Action* in General. [CHAP.

accounts, thedemand whichitcreates for punishment. Theseare,

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.

Acts positive VIII. Acts may be distinguished in several ways, for several

andnega- J '

tive. 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 *.

Negative IX. Such acts, again, as are negative, may either be absolutely
so relatively so, or relatively : absolutely, when they import the negation of
luteiy. all positive agency whatsoever ; for instance, not to strike at all :
relatively, when they import the negation of such or such a par-
ticular mode of agency; for instance, not to strike such a person
or such a thing, or in such a direction.

Negative X. It is to be observed, that the nature of the act, whether
expressed positive or negative, is not to be determined immediately by the

positively; , . ^ .. . . l A , , . ,

and vice form of the discourse made use of to express it. An act which

versa.

Acts of omis- 1 The distinction between positive and negative acts runs through the
su>n ar still wno i e S y S tem of offences, and sometimes makes a material difference with
regard to their consequences. To reconcile us the better to the extensive,
and, as it may appear on some occasions, the inconsistent signification here
given to the word act, it may be considered, I. That in many cases, where
no exterior or overt act is exercised, the state which the mind is in at the
time when the supposed act is said to happen, is as truly and directly the
result of the will, as any exterior act, how plain and conspicuous soever.
The not revealing a conspiracy, for instance, may be as perfectly the act of
the will, as the joining in it. In the next place, that even though the mind
should never have had the incident in question in contemplation (insomuch
that the event of its not happening should not have been so much as
obliquely intentional) still the state the person's mind was in at the time
when, if he 'had so willed, the incident might have happened, is in many
cases productive of as material consequences; and not only as likely, but as
fit to call for the interposition of other agents, as the opposite one. Thus,
when a. tax is imposed, your not paying it is an act which at any rate must
be punished in a certain manner, whether you happened to think of paying
it or not.

vii.] Of Human Actions in General. 73

is positive in its nature may be characterized by a negative ex-
pression : 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 character-
ized 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.

XL In the second place, acts may be distinguished into ex- Acts exter-
ternal and internal. By external, are meant corporal acts ; acts tenmi.
of the body : by internal, mental acts ; acts of the mind. Thus,
to strike is an external or exterior 1 act: to intend to strike, an
internal or interior one.

XII. Acts of discourse are a sort of mixture of the two : ex- Acts of dis-
ternal acts, which are no ways material, nor attended with any
consequences, any farther than as they serve to express the exist-
ence 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 External
transitive and intransitive. Acts may be called transitive, when transitive or
tli^ 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 2 .

1 An exterior act is also called by lawyers overt.

* The distinction is well known to the latter grammarians : it is with Distinction be.
them indeed that it took its rise : though by them it has been applied [iv^cS S d
rather to the names than to the things themselves. To verbs, signifying intransitive,
transitive acts, as here described, they have given the name of transitive jan?m?riansf
verbs: those significative of intransitive acts they have termed intransitive.
These last are still more frequently called neuter; that is, neither active nor
passive. The appellation seems improper: since, instead of their being
neither, they are both in one.

To the class of acts that are here termed intransitive, belong those which
constitute the 3rd class in the system of offences. See ch. [Di vision] and B. I.
tit. [Self regarding Offences].

74 Qf Himan Actions in General. [CHAP.

A transitive 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
gress. pr " 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 im-
pulse 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 1 , or in gradu media-
tivo : as in the case where a man throws a stone or fires a bullet
at you.

An intransi- XV. An act of the intransitive kind may be said to be in its
commence- commencement, when the motion or impulse is as yet confined
termination, to the member or organ in which it originated ; and has not yet
been communicated to any member or organ that is distinguish-
able 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 per-
son. 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 2 .

Acts tran- XVI. In the third place, acts may be distinguished into tran-
sient and . . . .
continued, sient 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.
Difference XVII. In strictness of speech there is a difference between a

between a . * . ...

continued continued act and a repetition of acts. It is a repetition of acts,

1 Or in its migration, or in transitu.

1 These distinctions will be referred to in the next chapter: ch. viii. [In-
tentionality] : and applied to practice in B. I. tit. [Extenuations].

vii.] Of Human Actions in General. 75

when there are intervals filled up by acts of different natures : a act and a

i r repetition of

continued act, when there are no such intervals. Thus, to acts,
lean, is one continued act : to keep striking, a repetition of
acts.

XVIII. There is a difference, again, between a repetition of Difference
acts, and a habit or practice. The term repetition of acts may repetition of
be employed, let the acts in question be separated by ever such hab 8 it an
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 con-
siderable 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 con-
tracted a habit : but every repetition of acts is not a habit *.

XIX. Fourth, acts may be distinguished into indivisible and Acts are in-
divisible. Indivisible acts are merely imaginary : they may be divisible;

i j i x u i x i ri j anddivi-

easily conceived, but can never be known to be exemplified, sibie, as well

Such as are divisible may be so, with regard either to matter or tomattSaa
to motion. An act indivisible with regard to matter, is the to motlon '
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 hetero-
geneous, derive a sort of unity from the relation they bear to
some common design or end ; such as the act of giving a dinner,

1 A habit, it should seem, can hardly in strictness be termed an aggre-
gate of acts : acts being a sort of real archetypal entities, and habits a
kind of fictitious entities or imaginary beings, supposed to be constituted
by, or to result as it were out of, the former.

76 Of Human Actions in General. [CHAP.

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.

Caution re- XX. It has been every now and then made a question, what it
spectingthe ... ., , .. , , , ,

ambiguity of 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 1 . 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 na-
ture 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 an-
other 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.

circum- XXI. So much with regard to acts considered in themselves :
tobe con- re we come now to speak of the circumstances with which they
sidered. ^^ h&ve 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
what. objects 2 whatsoever. Take any act whatsoever, there is nothing
in the nature of things that excludes any imaginable object from

1 Distinctions like these come frequently in question in the course of
Procedure.

2 Or entities. See B. II. tit. [Evidence], [Facts].

vii.] Of Human Actions in General. 77

being a circumstance to it. Any given object may be a circum-
stance to any other 1 .

XXIII. We have already had occasion to make mention for Ci

a moment of the consequences of an act : these were distinguished material and
into material and immaterial. In like manner may the circum- imma
stances 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 rela-
tion 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 2 . A circum- A circum-
stance may be related to an event in point of causality in any be a reiated^o
one of four ways : I. In the way of causation or production. pSint e o}Vau-
2. In the way of derivation. 3. In the way of collateral con- four ways,
nexion. 4. In the way of conjunct influence. It may be said duction. r
to be related to the event in the way of causation, when it is of tionf "^
the number of those that contribute to the production of such j
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

1 The etymology of the word circumstance is perfectly characteristic of circumstance
its import: circum stantia, things standing round: objects standing round o
a given object. I forget what mathematician it was that defined God to
be a circle, of which the centre is every where, but the circumference no
where. In like manner the field of circumstances, belonging to any act,
may be defined a circle, of which the circumference is no where, but of
which the act in question is the centre. Now then, as any act may, for
the purpose of discourse, be considered as a centre, any other act or object
whatsoever may be considered as of the number of those that are stand'" -
round it.

See B. II. tit. [Evidence], [Facts].

78 Of Human Action,* in General. [CHAP.

not, they have both of them concurred in the production of some
common consequence.

Example. XXV. An example may be of use. In the year i628,Villiers,
tionofBurfc. Duke of Buckingham, favourite and minister of Charles I. of
ing am. E n gl an ^ ) received a wound and died. The man who gave it
him was one Felton,who, exasperated at the mal-administration
of which that minister was accused, went down from London to
Portsmouth, where Buckingham happened then to be, made his
way into his anti-chamber, 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 assas-
sin'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 Buck-
ingham's administration,that administrationitself, Charles's ap-
pointing such a minister, and so on, higher and higher without
end, are so many circumstances, related to the event of Buck-
ingham's receiving the wound, in the way of causation or pro-
duction : 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 influ-
ence; 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 l .

1 The division may be farther illustrated and confirmed by the more
simple and particular case of animal generation. To production corresponds

vij,] Of Unman Actions in General. 79

XXVI. These several relations do not all of them attach upon it is not
an event with equal certainty. In the first place, it is plain, thaPhas cSr-
indeed, that every event must have some circumstance or other, related to it
and in truth, an indefinite multitude of circumstances, related to ways/ se
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

paternity : to derivation, filiation : to collateral connexion, collateral con-
sanguinity: to conjunct influence, marriage and copulation.

If necessary, it might be again illustrated by the material image of a
chain, such as that which, according to the ingenious fiction of the ancients,
is attached to the throne of Jupiter. A section of this chain should then
be exhibited by way of specimen, in the manner of the diagram of a pedi-
gree. Such a figure I should accordingly have exhibited, had it not been
for the apprehension that an exhibition of this sort, while it made the
subject a small matter clearer to one man outof a hundred, might, like tho
mathematical formularies wo see sometimes employed for the like purpose,
make it more obscure and formidable for the other ninety-nine.

1 The more remote a connexion of this sort is, of course the more obscure.
It will often happen that a connexion, the idea of which would at first
sight appear extravagant and absurd, shall be rendered highly probable,
and indeed indisputable, merely by the suggestion of a few intermediate
circumstances.

At Rome, 390 years before the Christian sera, a goose sets up a cackling :
two thousand years afterwards a king of France is murdered. To consider
these two events, and nothing more, what can appear more extravagant
than the notion that the former of them should have had any influence on
the production of the latter ? Fill up the gap, bring to mind a few inter-
mediate circumstances, and nothing can appear more probable. It was the
cackling of a parcel of geese, at the time the Gauls had surprised the Capi-
tol, that saved the Roman commonwealth: had it not been for the ascend-
ancy that commonwealth acquired afterwards over most of the nations of
Europe, amongst others over France, the Christian religion, humanly
speaking, could not have established itself in the manner it did in that
country. Grant then, that such a man as Henry IV. would have existed,
no man, however, would have had those motives, by which Ravaillac, mis-

8o Of Human Actions in General. [CHAP.

therefore that the multitude and description of such of the cir-
cumstances belonging to an act, as may appear to be material,
will be determined by two considerations : I. By the nature of
things themselves. 2. By the strength or weakness of the facul-
ties of those who happen to consider them.

ci!a )?er his XXVII. Thus much it seemed necessary to premise in general
concerning acts, and their circumstances, previously to the con-
sideration 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 offence. Together with this act, under
the notion of the same offence, are included certain circum-
stances : which circumstances enter into the essence of the
offence, 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 1 . 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 2 or
extenuative circumstances 3 : if of the mischievous kind, they
bestow on them the appellation of aggravative circumstances 4 .
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
offence with them, and with the act respectively, in the way of
derivation : the consequences of the modified offence, with the

led by a mischievous notion concerning the dictates of that religion, was
prompted to assassinate him.

1 See B. 1. 1 1.

* See B. I. tit.
8 See B. I. tit.

* See B. I. tit.

Grim, circumstances].
'Justifications].
'Extenuations].
'Aggravations].

vii.] Of Human Actions in General. 81

criminative, exculpative, and extenuative circumstances respec-
tively, in the way also of derivation : these different sets of
circumstances, with the consequences of the modified act or
offence, in the way of production : and with one another (in
respect of the consequences of the modified act or offence) in the
way of conjunct influence. Lastly, whatever circumstances can
be seen to be connected with the consequences of the offence,
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 offence in the way of evidence, they may accord-
ingly 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 *.

1 See B. I. tit. [Accessory Offences] and B. II. tit. [Evidence].

It is evident that this analysis is equally applicable to incidents of a
purely physical nature, as to those in which moral agency is concerned. If
therefore it be just and useful here, it might be found not impossible, per-
haps, to find some use for it in natural philosophy.

CHAPTER VIII.

OF INTENTIONALITY.

Recapituiu- 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 con-
sider the ways in which the particular circumstance of intention
may be concerned in it.

The inten- II. First, then, the intention or will may regard either of two
objects : I. The act itself : or, 2. Its consequences. Of these

or, 2! The ' objects, that which the intention regards may be styled inten-
tiondl. If it regards the act, then the act may be said to be
intentional l : if the consequences, so also then may the conse-
quences. 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.

Ambiguity of * On this occasion the words voluntary and involuntary are commonly
//,7i^and employed. These, however, I purposely abstain from, on account of the
involuntary, extreme ambiguity of their signification. By a voluntary act is meant
sometimes, any act, in the performance of which the will has had any con-
cern at all ; in this sense it is synonymous to intentional: sometimes such
acts only, in the production of which the will has been determined by
motives not of a painful nature ; in this sense it is synonymous to uncon-
strained, or uncoerced: sometimes such acts only, in the production of
which the will has been determined by motives, which, whether of the
pleasurable or painful kind, occurred to a man himself, without being sug-
gested by any body else ; in this sense it is synonymous to spontaneous.
The sense of the word involuntary does not correspond completely to that
of the word voluntary. Involuntary is used in opposition to intentional ;
and to unconstrained : but not to spontaneous. It might be of use to con-
fine the signification of the words voluntary and involuntary to one single
and very narrow case, which will be mentioned in the next note.

Of Intentionality. 83

III. The act may very easily be intentional without the con- it may re-
sequences ; and often is so. Thus, you may intend to

man without intending to hurt him : and yet, as the conse-
quences turn out, you may chance to hurt him.

IV. The consequences of an act may also be intentional, with- -or the con-

. sequences

out the act's being intentional throughout ; that is, without its without re-
& , . e . . KardiriK the

being intentional in every stage of it : but this is not so frequent wt in uii its
a case as the former. You intend to hurt a man, suppose, by run-
ning 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, .^ n t
without the act's being itself intentional in at least the first larding the

first stage*

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 inten-
tion, 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 indi-
vidual 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 l .

1 To render the analysis here given of the possible states of the mind in \nactuninten-
point of intentionality absolutely complete, it must be pushed to such a "age. 'may b st
farther degree of minuteness, as to some eyes will be apt to appear trifling. with respect
On this account it seemed advisable to discard what follows, from the text r. Quantity of
to a place where any one who thinks proper may pass by it. An act of the ".^D^ectSnf '
body, when of the positive kind, is a motion : now in motion there are j- Velocity. '
always three articles to be considered : i. The quantity of matter that
moves : 2. The direction in which it moves : and, 3. The velocity with
which it moves. Correspondent to these three articles, are so many modes
of intentionality, with regard to an act, considered as being only in its first
stage. To be completely unintentional, it must be unintentional with

G 2

84 Of Intentionally. [CHAP.

A uence 6 ^' Second. A consequence, when it is intentional, may

when inten- either be directly so, or only obliquely. It may be said to be
be directly directly or lineally intentional, when the prospect of producing
liqueiy. it constituted one of the links in the chain of causes by which
the person was determined to do\he act. It may be said to be
obliquely or collaterally intentional, when, although the conse-
quence 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.

When di- VII. Third. An incident, which is directly intentional, may

matejyso/or either be ultimately so, or only mediately. It may be said to be

me la e y. u i^j ma ^ e jy 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

linkin the same chain : insomuch that the prospect of producing

respect to every one of these three particulars. This is the case with those
acts which alone are properly termed involuntary : acts, in the performance
of which the will has no sort of share: such as the contraction of the heart
and arteries.

Upon this principle, acts that arc unintentional in their first stage, may
be distinguished into such as arc completely unintentional, and such as are
incompletely unintentional : and these again may be unintentional, either
in point of quantity of matter alone, in point of direction alone, in point of
velocity alone, or in any two of these points together.

The example given further on may easily be extended to this part of the
analysis, by any one who thinks it worth the while.

There seem to be occasions in which even these disquisitions, minute as
they may appear, may not be without their use in practice. In the case of
homicide, for example, and other corporal injuries, all the distinctions here
specified may occur, and in the course of trial may, for some purpose or
other, require to be brought to mind, and made the subject of discourse.
What may contribute to render the mention of them pardonable, is the use
that might possibly be made of them in natural philosophy. In the hands
of an expert metaphysician, these, together with the foregoing chapter on
human actions, and the section on facts in general, in title Evidence of the
Book of Procedure, might, perhaps, be made to contribute something
towards an exhaustive analysis of the possible varieties of mechanical
inventions.

viii.] Of Intentionality. 85

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 When di-
may either be exclusively so, or inexclusively. It may be saidtfonaUt 6 "
to be exclusively intentional, when no other but that very indi- SSiveiy so,
vidual incident wouldhave answered the purpose, insomuch that Sv3yf U
no other incident had any share in determining the will to the

act in question. It may be said to have been inexclusively l in-
tentional, 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 When inex-
may be either conjunctivelyso, disjunctively, or indiscriminately, mayhe con-

It may be said to be conjunctively intentional with regard
such other incident, when the intention is to produce both : dis-
junctively, when the intention is to produce either the one or atelyso -
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 arc disjunctively intentional,

rrn 1-1 .l unctlv ly 1*

they may be so with or without preference. They may be said may be with

. . . . f or without

to be so with preference, when the intention is, that one of them preference.
in particular should happenratherthan the other : without pre-
ference, when the intention is equally fulfilled, whichever of them
happens 2 .

XL One example will make all this clear. William II. king Example.
of England, being out a stag-hunting, received from Sir Walter

1 Or concurrently.

2 There is a difference between the case where an incident is altogether Difference be-
unintentional, and that in which, it being disjunctively intentional with Sentl being 1
reference to another, the preference is in favour of that other. In the first I^JJf"^' 11 '
case, it is not the intention of the party that the incident in question should dveiyTnten-
happen at all: in the latter case, the intention is rather that the other ii eieSon is
should happen: but if that cannot be, then that this in question should in favour of the
happen rather than that neither should, and that both, at any rate, should other *

not happen.

All these are distinctions to be attended to in the use of the particle or:
a particle of very ambiguous import, and of great importance in legislation.
See Append, tit. [Composition].

86 Of Intentionally. [CHAP.

Tyrrel a wound, of which he died 1 . Let us take this case, and
diversify it with a variety of suppositions, correspondent to the
distinctions just laid down.

1. 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 in-
cident 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 ac-
cordingly. 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 pluck-
ing 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

Hume's Hist.

VIIL] Of InfeutionaKty. 87

than in the leg. In this case the intention of shooting in the
hand was disjunctively concurrent, with regard to the other in-
cident, 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 theintention 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 intetitjprmi-

' J m ity of the act

in any stage or stages of it, though intentional in the preceding : wi * h respect

and, on the other hand, it may be intentional in any stage or ent .^/^,

. ... t ho ^ far ma "

stages of it, and yet unintentional in the succeeding \ But teriai.

whether it be intentional or no in any preceding stage, is im-
material, 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 J^J^JJ gs

a bad intention ; of the goodness and badness of a man's inten- of intention

i 11 i i T dismissed.

tion : 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 is 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
1 See ch. vii. [Actions], par. 14.

88 Of Intentionality.

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 bad-
ness of the consequences depend upon the circumstances. Now
the circumstances are 110 objects of the intention. A man in-
tends the act : and by his intention produces the act : but as to
the circumstances, he does not intend them : he does not, inas-
much as they are circumstances of it, produce them. If by
accident there be a few which he has been instrumental in pro-
ducing, 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 under-
standing 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 inten- Connexion

, . , . , of this chap-

tion may be concerned in the production of any incident : we tcr with the
come now to consider the part which the understanding or rc mg "
perceptive faculty may have borne, with relation to such in-
cident.

II. A certain act has been done, and that intentionally : that Acts advised

.. . , . and unad-

act was attended with certain circumstances : upon these cir- vised: con-
cumstances depended certain of its consequences ; and amongst what,
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 Unadvised-
have been advised or unadvised : I. The existence of the circum- gard either'
stance itself. 2. The materiality of it 1 . materiality. 1

IV. It is manifest, that with reference to the time of the The circum-

, ii-i stance may

act, sucn circumstance may have been either present, past, or have been

,. . present,

future. past, or

V. An act which is unadvised, is either heedless, or not heed
less. It is termed heedless, when the case is thought to
such, that a person of ordinary prudence 2 , if prompted by an

1 See ch. vii. [Actions], par. 3. a See ch. vi. [Sensibility], par. 12.

90 Of Consciousness. [CHAP.

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 l .

V ** A 8 a i n - Whether a man did or did not suppose the ex-
mte-sir i stence or materiality of a given circumstance, it may be that he
posai. 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.

The sup- VII. Now a circumstance, the existence of which is thus
cumstance erroneously supposed, may be material either, I. In the way of

might have ,. T ^ / ^ TJ. i_ -j x

been ma- prevention : or, 2. In that of compensation. It may be said to
wayeitherof be material in the way of prevention, when its effect or tendency,
oroTcom- 11 had it existed, would have been to prevent the obnoxious con-
pensation. se q uences . j n fa Q wa y o f compensation, when that effect or
tendency would have been to produce other consequences, the
beneficialnessof which would haveout- weighed the mischievous-
ness of the others.

it may have VIII. It is manifest that, with reference to the time of the
posed S pfe- ac ^> suc ^ imaginary circumstance may in either case have been
^future!' supposed either to be present, past, or future.
Example, IX. To return to the example exhibited in the preceding

continued -i ,
from the last Chapter.

chapter. IQ rpyrrel 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.
II. He knew that the king was riding that way : but at the

1 See B. I. tit. [Extenuations].

x.] Of Consciousness. 91

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 cir-
cumstance.

12. Somebody had dipped the arrow in poison, without
TyrrePs 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 circum-
stance Tyrrel was not aware. In this case the act was unad-
vised, 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 i>y 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 intention- in what case
ality 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 toXecon- ct
relation to a given consequence, and there is no mis-supposal sequences *
with regard to any preventive circumstance, that consequence

Of Consciousness.

[CHAP.

Example
continued.

A misad-
vised act
may be rash
or not rash

The inten-
tion may be
good or bad
in itself, in-
dependently
of the motive
as well as
the eventual
conse-
quences.

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 but be 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 pro-
bability 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 erro-
neous supposition of a circumstance by which the shot would
have been prevented from taking place, or any such other pre-
ventive 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 non-
existence, 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

ix.] Of Consciousness. 93

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 mis
chievous, 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 conse-
quences 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 it is better
as being good or bad, with reference to the consequences, if he Teuton is "
speaks of it at all he must use the word intention, for there spoken of as
is no other. But if a man means to speak of the motive from Sr b'adf not
which your intention originated, as being a good or a bad one, ie

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 inten-
tion. 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 l . 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 Example.
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
1 See ch. xii. [Consequences].

94 Qf Consciousness. [CHAP.

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 callo.d 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 in-
cluded 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.

Intention, XVI. In the same sense the intention, whether it be positively

cases it may 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 : i. 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 wis-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.

intentional- XVII. A few words for the purpose of applying what has
sciousness, been said to the Roman law. Unintentionality, and innocence
of in t?ie en of intention, seem both to be included in the case of infor-
man aw. ^ w h ere there is neither dolus nor culpa. Unadvisedness

coupled with heedlessness, and mis-advisedness coupled with
rashness, correspond to the culpa sine dolo. Direct intention-
ality 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 ? Adis-

ix.] Of Consciousness. 95

tinction, 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 under-
stood to imply deceit, concealment 1 , clandestinity 2 : 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 3 .

XVIII. The above-mentioned definitions and distinctions are Use of this
far from being mere matters of speculation. They are capable ceding pre
of the most extensive and constant application, as well to moral cllapler *
discourse as to legislative practice. Upon the degree and bias
of a man's intention, upon the absence or presence of conscious-
ness 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 punish-

1 See B. I. tit. [Theft] verbo [amenable].

* Dolus, an virtus quis in hoste requirit ? VIRGIL.
5oAy 77^ KOL w<p(.Mv. HOMER.

8 I pretend not here to give any determinate explanation of a set of
words, of which the great misfortune is, that the import of them is confused
and indeterminate. I speak only by approximation. To attempt to deter-
mine the precise import that has been given them by a hundredth part of
the authors that have used them, would be an endless task. Would any
one talk intelligibly on this subject in Latin? let him throw out dolus alto-
gether : let him keep culpa, for the purpose of expressing not the case
itself, but the sentiment that is entertained concerning a case described by
other means. Forintentionality,let him coin a word boldly, and say inten-
tionalitas : for unintentionally, non-intentionalitaa. For unadvisedness,
he has already the word inscitia ; though the words imprudentia, inobser-
vantia, were it not for the other senses they are used in, would do better :
for unadvisedness coupled withheedlessnoss, let him say inscitia culpabilia
for unadvisedness without heedlessness, inscitia inculpabilia : for mis-ad-
visedness coupled with rashness, error culpabilia, error temerariua, or error
cum temeritate : for mis-advisedness without rashness, error inculpabilia,
error non-temerariua, or error aine temeritate.

. It is not unfrequent likewise to meet with the phrase, malo animo : a
phrase still more indeterminate, if possible, than any of the former. It
seems to have reference either to intentionality, or to consciousness, or to
the motive, or to the disposition, or to any two or more of these taken
together ; nobody can tell which : these being objects which seem to have
never hitherto been properly distinguished and defined.

96 Of Consciousness.

ment 1 . 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 criminative circum-
stances 2 , 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 3 .
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 4 .

1 See ch. xiii. [Cases unmeet].

2 See B. I. tit. [Circumstances influencing].

3 See B. I. tit. [Aggravations].

4 See B. I. tit. [Extenuations].

CHAPTER X.

OF MOTIVES.

i. Different senses of the word motive*.

I. IT is an acknowledged truth, that every kind of act what- Motives,
ever, and consequently every kind of offence, is apt to assume a ^Ldered. 1 "
different character, and be attended with different effects, accord-
ing 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 Purely spe-

, . , . , - _ . 1 . - . . culative mo-

word is ever used with reference to a thinking being, is meant tives have

.1 ,1 , -i i At , . nothing to

any thing that can contribute to give birth to, or even to pre- do here,
vent, any kind of action. Now the action 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 pro-
duction 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

1 Note by the author, July, 1822.

For a tabular simultaneous view of the whole list of MOTIVES, in conjunc-
tion with the correspondent pleasures and pains, interests and desires, see,
by the same author, Table of the Springs of Action, &c., with Explanatory
Nojbes and Observations. London : 1817, Hunter, St. Paul's Church Yard,
8vo. pp. 32.

The word inducement has of late presented itself, as being in its significa-
tion more comprehensive than the word motive, and on some occasions more
apposite.

BENTHAM rr

98 Of Motives. [CHAP.

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.

^* ^ e m ti ves w ^h 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, is to be understood any thing what-
soever, 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 1 , upon any occasion. Motives of
this sort, in contradistinction to the former, may be styled prac-
tical motives, or motives applying to practice.
Figurative IV. Owing to the poverty and unsettled state of language,

ative senses the word motive is employed indiscriminately to denote two
of the word. ,.,,,. i--ii.ii -i -i

kinds of objects, which, for the better understanding of the sub-
ject, 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

1 When the effect or tendency of a motive is to determine a man to for-
bear to act, it may seem improper to make use of the term motive: since
motive, properly speaking, means that which disposes an object to move.
We must however use that improper term, or a term which, though proper
enough, is scarce in use, the word determinative. Byway of justification, or
at least apology, for the popular usage in this behalf, it may be observed,
that even forbearance to act, or the negation of motion (that is, of bodily
motion) supposes an act done, when such forbearance is voluntary. It sup-
poses, to wit, an act of the will, which is as much a positive act. as much a
motion, as any other act of the thinking substance.

x.] Of Motives. 99

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 Motives in-
also given, these too are of two very different kinds. They exterior,
may be either, i. 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 dis- Motive in
tinguished. Motive refers necessarily to action. It is a pleasure, motive in
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 pos-
sible object which is thus 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

Ho
L

joo Of Motives. [CHAP.

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 ex-
tending 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 proba-
bility 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.
Motives im- VII. Of all these motives, which stand nearest to the act, to
remote? au 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 1 . 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 2 .

1 Whether it be the expectation of being burnt, or the pain that accom-
panies that expectation, that is the immediate internal motive spoken of,
may bo difficult to determine. It may even be questioned, perhaps, whether
they are distinct entities. Both questions, however, seem to be mere ques-
tions of words, and the solution of them altogether immaterial. Even the
other kinds of motives, though for some purposes they demand a separate
consideration, are, however, so intimately allied, that it will often be pcarce
practicable, and not always material, to avoid confounding them, as they
have always hitherto been confounded.

2 Under the term esse must be included as well past existence, with re-

x.] Of Motives. 101

VIII. It has already been observed, that with motives of Motives to
which the influence terminates altogether in the understanding, standing, "
we have nothing here to do. If then, amongst objects that are may influ-
spoken of as motives with reference to the understanding, there ^m? e
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 pros-
pect, 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 neigh-
bour'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.

IX. In all this chain of motives, the principal or original link Nothing can

. . . . . . act of itself

seems to be the last internal motive in prospect : it is to this as a motive

ference to a given period, as present. They are equally real, in comparison
with what is as yet but future. Language is materially deficient, in not
enabling us to distinguish with precision between existence as opposed to
unreality and present existence as opposed to past. The word existence
in English, and esse, adopted by lawyers from the Latin, have the incon-
venience of appearing to confine the existence in question to some single
period considered as being present.

102 Of Motives. [CHAP.

but the ideas that all the other motives in prospect owe their materiality : and
orpahf t ure 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 substan-
tially nothing more than pleasure or pain, operating in a certain
manner.
No sort of X. Now, pleasure is in itself a good: nay, even setting aside

motive is in . . , . * ....,,

itself a bad 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, there-
fore, immediately and incontestibly, that there is no such thing
as any sort of motive that is in itself a bad one l .

inaccuracy XI. It is common, however, to speak of actions as proceeding

sions iii from good or bad motives : in which case the motives meant are

OTfcKfaro such as are internal. The expression is far from being an

motives. accurate one ; and as it is apt to occur in the consideration of

almost 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.

Any sort of XII. With respect to goodness and badness, as it is with

motive may . . . ., . . . .

pive birth to everything else that is not itself either pain or pleasure, so is it

any sort of ' e r . f '

act. with motives. It 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 pro-
ceed actions that are good, others that are bad, and others that

1 Let a man's motive be ill-will ; call it even malice, envy, cruelty ; it is
still a kind of pleasure that is his motive : the pleasure he takes at the
thought of the pain which he sees, or expects to see, his adversary undergo.
Now even this wretched pleasure, taken by itself, is good : it may bo faint;
it may be short : it must at any rate be impure : yet while it lasts, and
before any bad consequences arrive, it is as good as any other that is not

x.] Of Motives. 103

are indifferent. This we shall proceed to shew 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 Difficulties
matter of no small difficulty ; owing, in great measure, to a cer- in the way 1
tain perversity of structure which prevails more or less through- lysis of this
out all languages. To speak of motives, as of anything else, sor
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 im-
putable 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 per son 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 dis-
approbation 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.

JO4 Of Motives. [CHAP.

Now there are certain motives which, unless in a few par-
ticular 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 1 . 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 2 .

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

1 For the reason, see chap. xi. [Dispositions], par. xvii. note.

8 To this imperfection of language, and nothing more, arc to be attributed,
in great measure, the violent clamours that have from time to time been
raised against those ingenious moralists, who, travelling out of the beaten
tract of speculation, have found more or less difficulty in disentangling
themselves from the shackles of ordinary language : such as Kochef oucault,
Mandeville and Helvetius. To the unsoundness of their opinions, and,
with still greater injustice, to the corruption of their hearts, was often im-
puted, what was most commonly owing either to a want of skill, in matters
of language on the part of the author, or a want of discernment, possibly
now and then in some instances a want of probity, on the part of the com-

x ] Of Motives. 105

language is ductile enough to permit him this resource. Tq
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 l .

3. Catalogue of motives corresponding to that of Pleasures
and Pains.

XIV. From the pleasures of the senses, considered in the Physical de-
gross, results the motive which, in a neutral sense, maybe termed spending to
physical desire : in a bad sense, it is termed sensuality. Name iSeS? 8
used in a good sense it has none. Of this, nothing can be deter- genera
mined, 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 The motive

i ,. -.,. . -. . n correspond-

corresponds a motive, which in a neutral sense having received ins to tho

ji t , , 11 11 pleasures of

no name that can serve to express it in all cases, can only be the palate,
termedjbycircumlocution, the love of the pleasures of the palate.
In particular cases it is styled hunger : in others, thirst 2 . The
love of goodcheer expresses this motive, but seems to go beyond :

1 Happily, language is not always so intractable, but that by making use
of two words instead of ono, a man may avoid the inconvenience of fabri-
cating words that are absolutely new. Thus instead of the word lust, by
putting together two words in common use, he may frame the neutral ex-
pression, sexual desire : instead of tho word avarice, by putting together
two other words also in common use, he may frame the neutral expression,
pecuniary interest. This, accordingly, is the course which I have taken.
In these instances, indeed, even the combination is not novel : the only
novelty there is consists in the steady adherence to the ono neutral ex-
pression, rejecting altogether the terms, of which the import is infected by
adventitious and unsuitable ideas.

In the catalogue of motives, corresponding to the several sorts of pains
and pleasures, I have inserted such as have occurred to me. I cannot
pretend to warrant it complete. To make sure of rendering it so, the only
way would be, to turn over the dictionary from beginning to end : an opera-
tion which, in a view to perfection, would be necessary for more purposes
than this. See B. I. tit. [Defamation], and Append, tit. [Composition],

* Hunger and thirst, considered in the light of motives, import not so
much the desire of a particular kind of pleasure, as the desire of removing
a positive kind of pain. They do not extend to the desire of that kind of
pleasure which depends on the choice of foods and liquors.

io6 Of Motives. [CHAP.

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. i. 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, licker-
ishness. 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 \

Sexual de- XVI. To the pleasures of the sexual sense corresponds the
snondingto motive which, in a neutral sense, may be termed sexual desire,
of t& sexual In a bad sense, it is spoken of under the name of lasciviousness,
5ense% and a variety of other names of reprobation. Name used in a
good sense it has none 2 .

I. A man ravishes a virgin. In this case the motive is, with-
out 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
caU it by any of those names. In both cases, however, the

1 It will not be worth while, in every case, to give an instance in which
the action may be indifferent : if good as well as bad actions may result
from the same motive, it is easy to conceive, that also may be indifferent.

2 Love indeed includes sometimes this idea: but then it can never
answer the purpose of exhibiting it separately: since there are three
motives, at least, that may all of them be included in it, besides this : the
love of beauty corresponding to the pleasures of the eye, and the motives
corresponding to those of amity and benevolence. We speak of the love of
children, of the love of parents, of the love of God. These pious uses pro-
tect the appellation, and preserve it from the ignominy poured forth upon
its profane associates. Even sensual love would not answer the purpose ;
since that would include the love of beauty.

x.] Of Motives. 107

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 Curiosity,
known by the same name : and which may be otherwise called ^ponding to
the love of novelty, or the love of experiment ; and, on parti- Lre^of "
cular occasions, sport, and sometimes play. curiosity.

I. 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 None to
little consequence to have given any separate denominations to sense,
the corresponding motives.

XIX. To the pleasures of wealth corresponds the sort of motive Pecuniary

...... , , , . . interest to

which, in a neutral sense, may be termed pecuniary interest : in tho piea-

11 ^ ^ i . surcsof

a bad sense, it is termed, in some cases, avarice, covetousness, wealth,
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.

i. 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 ac-
counted 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 None to the
consequence enough, to have given any name to the correspond- skm! ures
ing motive.

XXI. To the pleasures of amity corresponds a motive which, To the pica-

io8 Of Motives. [CHAP.

in a neutral sense, may be termed the desire of ingratiating one's
desire of self. In a bad sense it is in certain cases styled servility : in a

ingratiating . ,...,.

one's self, 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 motiveof sympathy or benevolence,
with which, in such cases, it is commonly associated.

I. 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 your-
self, you make yourself subservient to his pleasures. Let them
even be lawful pleasures, if people choose to attribute your be-
haviour 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 ingra-
tiating yourself.

TO the plea- XXII. To the pleasures of the moral sanction, or, as they may

good name, otherwise be called, the pleasures of a good name, corresponds a
theloveof ,. ,- , A , T_ , 1 , A - -,

reputation, 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

x.j Of Motives. 109

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 dis-
honour, the fear of disgrace, the fear of infamy, the fear of
ignominy, or the fear of shame.

I. You have received an affront from a man : according to the
custom of the country, in order, on the one hand, to save your-
self from the shame of being thought to bear it patiently 2 ; on

1 See Chap. vi. [Pleasures and Pains], par. xxiv. note.

a A man's bearing an affront patiently, that is, without taking this
method of doing what is called wiping it off, is thought to import one or
other of two things : either that he does not possess that sensibility to the
pleasures and pains of the moral sanction, which, in order to render himself
a respectable member of society, a man ought to possess : or, that he does
not possess courage enough to stake his life for the chance of gratifying
that resentment which a proper sense of the value of those pleasures and
those pains it is thought would not fail to inspire. True it is, that there
are divers other motives, by any of which the same conduct might equally
be produced : the motives corresponding to the religious sanction, and tho
motives that come under tho head of benevolence. Piety towards God, the
practice in question being generally looked upon as repugnant to the dic-
tates of the religious sanction: sympathy for your antagonist himself, whoso
life would be put to hazard at the same time with your own ; sympathy
for his connexions ; the persons who are dependent on him in the way of
support, or connected with him in the way of sympathy : sympathy for
your own connexions : and even sympathy for the public, in cases where
the man is such that the public appears to have a material interest in his
life. But in comparison with the love of life, the influence of the religious
sanction is known to be in general but weak : especially among people of
those classes who are here in question : a sure proof of which is the preva-
lence of this very custom. Where it is so strong as to preponderate, it is so
rare, that, perhaps, it gives a man a place in the calendar : and, at any
rate, exalts him to the rank of martyr. Moreover, the instances in which
either private benevolence or public spirit predominate over the love of life,
will also naturally be but rare : and, owing to the general propensity to
detraction, it wifl also be much rarer for them to be thought to do so.
Now, when three or more motives, any one of them capable of producing a
given mode of conduct, apply at once, that which appears to be the most
powerful, is that which will of course be deemed to have actually done the
most : and, as the bulk of mankind, on this as on other occasions, are dis-
posed to decide peremptorily upon superficial estimates, it will generally be
looked upon as having done the whole.

The consequence is, that when a man of a certain rank forbears to take
this chance of revenging an affront, his conduct will, by most people, be
imputed to the love of fife : which, when it predominates over the love of
reputation, is, by a not unsalu tar y association of ideas, stigmatized with the
reproachful name of cowardice.

no Of Motives. [CHAP.

the other hand, to obtain the reputation of courage ; you chal-
lenge 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 motiveis 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 con-
duct not to this motive but to some other : such as that of
charity (the denomination in this case given to private sym-
pathy) 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 ad-
mirable 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 in-
stances 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.
TO the pica- XXIII. To the pleasures of power corresponds the motive

x.] Of Motives. in

which, in a neutral sense, may be termed the love of power, sures of
People, who are out of humour with it sometimes, call it the lust love of
of power. In a good sense, it is scarcely provided with a name. P wer *
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 be-
tween the two motives in many cases : since it commonly hap-
pens, 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.

i. 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 ac-
counted criminal and abominable : in the second case allowable,
and even laudable.

XXIV. To the pleasures as well as to the pains of the re- The motive
ligious sanction corresponds a motive which has, strictly speak- ti!ereTigious
ing, no perfectly neutral name applicable to all cases, unless the sanchollt
word religion be admitted in this character : though the word
religion, strictly speaking, seems to mean not so much the mo-
tive 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 super-
stitious zeal : in other cases, fanaticism, or fanatic zeal : in a
sensenot decidedly bad, because not appropriated to this motive,
enthusiasm, or enthusiastic zeal.

ii2 Of Motives. [CHAP.

lo 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 laud-
able, 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 be-
fore : 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 l .

XXV. To the pleasures of sympathy corresponds the motive
ieasuresof which, in a neutral sense, is termed good-will. The word sym-
ympa y. p^y ma y a ] so k e uge( j on ^kjg occas i on . 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,

1 I am aware, or at least I hope, that people in general, when they see
the matter thus stated, will be ready to acknowledge, that the motive in
these cases, whatever be the tendency of the acts which it produces, is not
a bad one : but this will not render it the less true, that hitherto, in popu-
lar discourse it has been common for men to speak of acts, which they

ing from a bad motive. The same observation will apply to many of the
other cases.

x.] Of Motives.

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 ex-
pression, 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.

i. 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 pro-
bably 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 benevo-
lence or compassion, they will be for prefixing an epithet, and
calling it false benevolence or false compassion 1 . 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,

1 Among the Greeks, perhaps the motive, and the conduct it gave birth
to, would, in such a case, have been rather approved than disapproved of.
It seems to have been deemed an act of heroism on the part of Hercules,
to have delivered his friend Theseus from hell : though divine justice,
which held him there, should naturally have been regarded as being at
least upon a footing with human justice. But to divine justice, even when
acknowledged under that character, the respect paid at that time of day
does not seem to have been very profound, or well-settled : at present, the
respect paid to it is profound and settled enough, though the name of it is
but too often applied to dictates which could have had no other origin than
the worst sort of human caprice.

BENTHAM I

1 14 Of Motives. [CHAP.

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 laud-
able 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,
andit willbetermed 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.

ill-will, &c. XXVI. To the pleasures of malevolence, or antipathy, corre-
to the plea- 1 . . * . . _ . . . , - ,

sures of an- sponds the motive which, in a neutral sense, is termed antipathy

tipathy. ,. , , . . , v V1 i i_

or displeasure : and, in particular cases, dislike, aversion, abhor-
rence, 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 1 . 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.

I. You rob a man : he prosecutes you, and gets you punished :

1 Here, as elsewhere, it may be observed, that the same words which are
mentioned as names of motives, are also many of them names of passions,
appetites, and affections : fictitious entities, which are framed only by con-
sidering pleasures or pains in some particular point of view. Some of them
are also names of moral qualities. This branch of nomenclature is remark-
ably entangled : to unravel it completely would take up a whole volume ;
not a syllable of which would belong properly to the present design.

x.] Of Motives. 115

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 prin-
ciple 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 seif-preser-

. , . . . . , -, j , vation, to

of them as are conceived to subsist in an intense degree, ana to the several
death, which, as far as we can perceive, is the termination of all pains 8 .
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 undis-
tinguishably. 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 corre-
sponding 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

12

n6 Of Motives. [CHAP.

pleasures and the pains of the moral and religious sanctions,
and consequently of the motives that correspond to them, as
like wise between the pleasures of amity, and the pains of enmity,
this want of boundaries has already been taken notice of 1 . 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-preserva-
tion 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.

i. 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
1 See ch. v. [Pleasures and Pains], par, xxiv, xxv.

x.] Of Motives. 117

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 indistin-
guishably 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 To the pains
the motive, which, in a neutral sense, may be termed the love the love of'
of ease, or by a longer circumlocution, the desire of avoiding
trouble. In a bad sense, it is termed indolence 1 . It seems to
have no name that carries with it a good sense.

i. 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

1 It may seem odd at first sight to speak of the love of ease as giving
birth to action : but exertion is as natural an effect of the love of ease as
inaction is, when a smaller degree of exertion promises to exempt a man
from a greater.

n8 Of Motives. [CHAP.

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 unfa-
vourable 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.
Motives can XXIX. It appears then that there is no such thing as any

only be bad , , i i i j > ir ,1

with refer- sort of motive which is a bad one in itself : nor, consequently,
most fro- 10 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
eir e ec s. ^^ sometimes bad, at other times either indifferent or good :
and this appears to be the case with every sort of motive. //
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 in-
dividual motives ; and this is the case with one sort of motive
as well as with another. If any sort of motive then can, in con-
sideration 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.
How it is XXX. What then ? (it will be said) are not lust, cruelty,

tnat mo- . ' J '

tives, such avarice, bad motives ? Is there so much as any one individual

aslust, ttva- . . . . J

rice, &c. are occasion, in which motives like these can be otherwise than bad ?

constantly _ . _ . .

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

x.] Of Motives. 119

motives they signify happen to be bad. The names of thoso
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 propo-
sition 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 common-place 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 ; dis-
pleasure, that of cruelty; and pecuniary interest, that of avarice.

XXXI. If it were necessary to apply such denominations as Under the

J . A r J . . above re-

good, bad, and indifferent to motives, they might be classed instructions,

, , . . . -, . , , f motives may

the following manner, in consideration of the most frequent com- be distin-
plexion of their effects. In the class of good motives might beffood, 6 bad!
placed the articles of, I. Good-will. 2. Love of reputation, feient OP*
3. Desire of amity. And, 4. Religion. In the class of bad neu
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 butinconvem-.
be imperfect ; and the nomenclature belonging to it is in danger distribution.
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 be-
ginning of the world, have, in each of the four species com-
prised under this name, been superior to the bad ? still more
difficulty would a man find in assuring himself , that with regard

120 Of Motives. [CHAP.

to those which are ranked under the name of neutral or indif-
ferent, 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 distin-
guished in this manner even with reference to each other.
hidfviduai in XXXIII. The only way, it should seem, in which a motive
that a mo e t1vcs can w ^ sa ^7 an ^ propriety be styled good or bad, is with
oHaad g d reference to its effects in each individual instance ; and princi-
pally 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 in-
tentions of every sort of complexion whatsoever. This circum-
stance, therefore, can afford no clue for the arrangement of the
several sorts of motives.
Motives dis- XXXIV. A more commodious method, therefore, it should

tinguisncd

into social, seem, would be to distribute them according to the influence

dissocial, . nil

and self- 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-regard-
ing. In the social class may be reckoned, I. Good- will. 2. Love

x.] Of Motives.

of reputation. 3. Desire of amity. 4. Religion. In the dis-
social 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,
social, if any farther distinction should be of use, to that of social, and
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-regard-
ing at the same time l .

4. Order of pre-eminence among motives.

XXXVI. Of all these sorts of motives, good- will is that of The dictates
which the dictates 2 , taken in a general view, are surest of coin-2^tho" wl11
ciding with those of the principle of utility. For the dictates coinciding
of utility are neither more nor less than the dictates of the mostoV utility 80
extensive 3 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 Yet do not
the case in question the dictates of benevolence are not contra- 111 a
dieted by those of a more extensive, that is enlarged, benevo-
lence. Now when the dictates of benevolence, as respecting the
interests of a certain set of persons, are repugnant to the dictates

1 * Religion,' says the pious Addison, somewhere in the Spectator, ' is the
highest species of self-love.'

2 When a man is supposed to be prompted by any motive to engage, or Laws and die.
not to engage, in such or such an action, it may be of use, for the conve-^^n
nience of discourse, to speak of such motive as giving birth to an imaginary motives.
kind of law or dictate, injoining him to engage, or not to engage, in it \

8 See ch. iv. [Value], and ch. vi. [Sensibility], par. xxi.
4 See ch. ix. [Consciousness],

1 Sec ch. i.

123 Of Motives. [CHAP.

of the same motive, as respecting the more important 1 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 impres-
sion. 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 unop-
posed 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.

Next to XXXVIII. After good- will, the motive of which the dictates
those of the seem to have the next best chance for coinciding with those of

love of repu-
tation, * Or valuable. See ch. iv. [Value].

x.] Of Motives. . 1 23

utility, is that of the love of reputation. There is but one cir-
cumstance which prevents the dictates of this motive from coin-
ciding 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 dis-
approbation, and in consequence to the person who appears to
practise 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 prin-
ciple of sympathy and antipathy. There is another circumstance,
whichdiminishes, 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 bene-
volence 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 1 : 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 2 .
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

1 See B. II. tit. [Evidence].

2 See ch. vi. [Sensibility], par. xii, xiii.

Of Motives. [CHAP.

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 1 .
Next those XXXIX. After the dictates of the love of reputation come,
of amity. 1 ' 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 thehappiness of a considerable number of persons :
the latter, from the beginning of life to 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 coin-
cidence with those of the love of reputation, and thence with
those of utility, in proportion, cccteris paribus, 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.

Difficulty of XL. The dictates of religion are, under the infinite diversity

those of re- 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 pro-

1 Strictly speaking, habit, being but a fictitious entity, and not really
any thing distinct from the acts or perceptions by which it is said to be
formed, cannot be the cause of any thing. The enigma, however, may be
satisfactorily solved upon the principle of association, of the nature and
force of which a very satisfactory account may be seen in Dr. Priestley's
edition of Hartley on Man.

x.] Of Motives. 125

f ess. 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, univer-
sally supposed to be as benevolent as he is supposed to be wise
and powerful ; and were the notions entertained of his benevo-
lence, 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 know-
ledge, 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, asthey are universal. But among the votaries
of religion (of which number the multifarious fraternity of Chris-
tians 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 theonly sensein which benevolence has a meaning.
For if they did,they would recognise 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 prin-
ciple of utility. They go astray after the strange principles its
antagonists : sometimes it is the principle of asceticism : some-
times the principle of sympathy and antipathy l . 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 2 . The dictates of religion, in short, are no other

1 Ch. ii. [Principles Adverse], par. xviii.

* Sometimes, in order the better to conceal the cheat (from their own
eyes doubtless as well as from others) they set up a phantom of their own,
which they call Justice : whose dictates are to modify (which being ex-
plained, means to oppose) the dictates of benevolence. But justice, in the

12,6 Of Motives. [CHAP.

than the dictates of that principle which has been already men-
tioned under the name of the theological principle 1 . 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 inter-
mixed more or less with dictates unconf ormable to those of utility,
deduced from texts, 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 mis-
chiefs 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 repu-
tation, and the desire of amity, as is possessed by the dictates of
benevolence.

Tendency XLI. Happily, the dictates of religion seem to approach nearer
improve, 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

only sense in which it has a meaning, is an imaginary personage, feigned
for the convenience of discourse, whose dictates are the dictates of utility,
applied to certain particular cases. Justice, then, is nothing more than an
imaginary instrument, employed to forward on certain occasions, and by
certain means, the purposes of benevolence. The dictates of justice are
nothing more than a part of the dictates of benevolence, which, on certain
occasions, are applied to certain subjects ; to wit, to certain actions.
1 See ch. ii. [Principles Adverse, &c.j

x.J Of Motives. 127

religion, they endeavour, sometimes with violence enough, to
patch together and adorn the repositories of their faith.

XLIL As to the self -regarding and dissocial motives, the Afterwards
order that takes place among these, and the preceding one, in self-regard-
point of extra-regarding influence, is too evident to need insist- an^astiy, 8 '
ing on. As to the order that takes place among the motives pleasure. 18 "
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 respecttothe 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, oron an act which offends
you no otherwise than because you look upon it as being pre-
judicial to some other party on whose behalf you interest your-
self : which other party may be of course either a determinate
individual, or any assemblage of individuals, determinate or in-
determinate l . 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 2 .

5. Conflict among motives.

XLIII. When a man has it in contemplation to engage in any Motives im-
action, he is frequently acted upon at the same time by the force restraining,
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

1 See ch. vi. [Sensibility], par. xxi.
8 See supra, par. xxxvii.

Of Motives. [CHAP.

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 1 .

What are XLIV. It has been shown, that there is no sort of motive but

the motives . .

most fre- may give birth to any sort of action. It follows, therefore, that

variance, 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 dass. In such case the
motiveof benevolence has commonly been acting,though ineffec-
tually, in the character of a restraining motive.

Example to XLV. An example may be of use, to show the variety of con-
struggle tending motives, by which a man may be acted upon at the

tending same time. Crillon, a Catholic (at a time when it was generally
motives. .

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, c Excuse me, Sire ; but I'll fight him with all my heart 2 .'
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 reli-
gious 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

1 See ch. vii. [Actions], par. viii.

2 The idea of the case hero supposed is taken from an anecdote in real
history, but varies from it in several particulars.

x.] Of Motives. 129

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 pre-
ference, 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 re-
ligion ? (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 re-
quire 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 com-
plying 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.

XL VI. What is here said about the goodness and badness of Practicaiuse
motives, is far from being a mere matter of words. There will disquisitions
be occasion to make use of it hereafter for various important motives,
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 1 , at other
1 See B. I. tit, [Rebellion].

BENTHAM X

130 Of Motives.

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 mis-
chief 2 : 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 imma-
terial: whence maybe seen the mischievousness of the prejudice
that is so apt to be entertained against informers ; and the con-
sequence 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 neces-
sary to be acquainted, in order to pass a judgment on any
means that may be proposed for combating offences in their
source 3 .

But before the theoretical foundation for these practical ob-
servations 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.

1 See B. I. tit. [Simp. corp. injuries]. Ib. tit. [Homicide].

8 See ch. xi. [Dispositions].

* See Append, tit. [Preventive Institutions].

CHAPTER XI.

OF HUMAN DISPOSITIONS IN GENERAL.

I. IN the foregoing chapter it has been shown at large, that Disposition
goodness or badness cannot, with any propriety, be predicated

of motives. Is there nothing then about a man that can pro-
perly 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 such 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 how far it

good or bad according to its effects : according to the effects it the present
f ,. T i ,1 * - t- ^ subject,

has in augmenting or diminishing the happiness of the com-
munity. A man's disposition may accordingly be considered in
two points of view : according to the influence it has, either,
i. on his own happiness : or, 2. on the happiness of others.
Viewed in both these lights together, or in either of them in-
discriminately, it may be termed, on the one hand, good ; on
the other, bad ; or, in flagrant cases, depraved 1 . Viewed in the

1 It might also be termed virtuous, or vicious. The only objection to
the use of those terms on the present occasion is, the great quantity of good
and bad repute that respectively stand annexed to them. The inconve-
nience of this is, their being apt to annex an ill-proportioned measure of
disrepute to dispositions which are ill-constituted only with respect to the
party himself : involving them in such a degree of ignominy as should be
appropriated to such dispositions only as are mischievous with regard to
others. To exalt weaknesses to a level with crimes, is a way to diminish

K2

Human Dispositions in General. [CHAP.

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 legis-
lator : nor is it susceptible of those various modifications which
make so material a 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.

A misohiey- III. A man then is said to be of a mischievous disposition,
tion; a. when, by the influence of no matter what motives, he is pre-
disposition; sumed 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.
What a IV. I say presumed : for, by the supposition, all that appears

man's dispo- . . , ,, i i ,i i , <

sition is, can is one single action, attended with one single train of circum-
matterof stances : but from that degree of consistency and uniformity
iM-esump- ^^ 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 in-
stance, such is the disposition to be presumed to be in others,
it depends V. I say apparently mischievous : that is, apparently with

upon what

the abhorrence which ought to be reserved for crimes. To exalt small evils
to a level with great ones, is the way to diminish the share of attention
which ought to oe paid to great ones.

XL] Human Dispositions in General. 133

regard to him : such as to him appear to possess that tendency : the act ap-
for from the mere event, independent of what to him it appears S^iSm.
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 bene-
ficial, 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 inten-
tionality 1 , consciousness 2 , unconsciousness 2 , and mis-supposal 2 .

VI. The truth of these positions depends upon two others, winch posi-
both of them sufficiently verified by experience : The one is, grounded on
that in the ordinary course of things the consequences of actions i. The cor-

commonly turn out conformable to intentions. A man who sets betwnn
up a butcher's shop, and deals in beef, when he intends to knock cons ns an
down an ox, commonly does knock down an ox ; though by quences:
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
in 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
doing mischief at one time is apt to entertain the like intentions *"
at another 3 .

VIII. There are two circumstances upon which the nature of The disposi-
the disposition, as indicated by any act, is liable to depend : inferred :

1 See ch. viii. a See ch. ix.

8 To suppose a man to bo of a good disposition, and at the same time ^^JJjJ{j OIIi
likely, in virtue of that very disposition, to engage in an habitual train of praeedsa.
mischievous actions, is a contradiction in terms : nor could such a proposi- Shuff^cll?
tion ever be advanced, but from the giving, to the thing which the word not be a good
disposition is put for, a reality which does not belong to it. If then, for onc *
example, a man of religious disposition should, in virtue of that very dis-
position, be in the habit of doing mischief, for instance,by persecuting his
neighbours, the case must be, either that his disposition, though good in
certain respects, is not good upon the whole : or that a religious disposition
is not in general a good one.

134 Human Dispositions in General. [CHAP.

i. From the I. The apparent tendency of the act : 2. The nature of the
tendency of motive which gave birth to it. This dependency is subject to
2. 1 |rom the different rules, according to the nature of the motive. In stating
the U motive. them, I suppose all along the apparent tendency of the act to be,

as it commonly is, the same as the real.

Case i. IX. i. Where the tendency of the act is goody and the motive
is of the self-regarding kind. In this case the motive affords no

regarding, inference on either side. It affords no indication of a good dis-
position : but neither does it afford any indication of a bad
one.

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.
Case 2. X. 2. Where the tendency of the act is bad, and the motive,

Tendency, 1r *, * , . i i T IT

&ad-motive, as before, is of the self-reqardinq kind. In this case the dispo-

ser-regard- .- , . i .

ing. sition indicated is a mischievous one.

A man steals bread out of a baker's shop : this is one of those
acts of which the tendency will readily be acknowledged to be
bad. Why, and in what respects it is so, will be stated farther
on 1 . His motive, we will say, is that of pecuniary interest ; the
desire of getting the value of the bread for nothing. His dispo-
sition, accordingly, appears to be a bad one : for every one will
allow a thievish disposition to be a bad one.

Tendenc 3 ' ^* 3" Where ^ c tendency of the act is good, and the motive
tive^d"' * s ^ e P ure ty soc i a l one of good-will In this case the disposition
will! 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 par-
ticular 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.

1 See ch. xii. [Consequences], and Code, B. I. tit. [Theft].

XL] Human Dispositions in General. 135

XII. 4. Where the tendency of the act is bad, and the motive Case *.
is the purely social one of good-will. Even in this case the dis- bad-motive
position which the motive indicates is dubious : it may be a g W1
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 This case
exist ; and that to suppose it, is a contradiction in terms.

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 distinc-
tion between enlarged benevolence and confined 1 . 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 com-
parison, 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 Example I.
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 dis-
position here indicated will hardly be looked upon as a good one.

XV. Another case will appear more difficult to decide than Example II.
either. Ravaillac assassinated one of the best and wisest of
sovereigns, at a time when a good and wise sovereign, a blessing

1 See ch. x. [Motives].

136 Human Dispositions in General. [CHAP.

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 ex-
ample, the future good behaviour of such a criminal is more than
any one can have sufficient ground to be persuaded of.

Example 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 tor-
ments. 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.
Casos. XVII. 5. Where the tendency of the act is goody and the

poodmo- motive is a semi-social one, the love of reputation. In this case

tive, love of _. . -. .. . ^

reputation, 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 \

The bulk of 1 The bulk of mankind, ever ready to depreciate the character of their
mmnkind apt to neighbours, in order, indirectly, to exalt their own, will take occasion to

xi.] Human Dispositions in General. 137

XVIII. 6. Where the tendency of the act is lad, and the,.

. . Tendency,

motive, as before, is a semi-social one, the love of reputation. ^ motive*

. honour*

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 Example I.
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

refer a motive to the class of bad ones as often as they can find one still ro e otKe i
better, to which the act might have owed its birth. Conscious that his
own motives are not of the best class, or persuaded that if they be, they
will not be referred to that class by others ; afraid of being taken for a
dupe, and anxious to show the reach of his penetration ; each man takes
care, in the first place, to impute the conduct of every other man to the
least laudable of the motives that can account for it : in the next place,
when ho has gone as far that way as he can, and cannot drive down the
individual motive to any lower claws, he changes his battery, and attacks
the very class itself. To the love of reputation he will accordingly give a
bad name upon every occasion, calling it ostentation, vanity, or vain-glory.
Partly to the same spirit of detraction, the natural consequence of the
sensibility of men to the force of the moral sanction, partly to the influence
of the principle of asceticism, may, perhaps, be imputed the great abund-
ance of bad names of motives, in comparison of such as are good or neutral :
and, in particular, the total want of neutral names for the motives of sexual
desire, physical desire in general, and pecuniary interest. The superior
abundance, even of good names, in comparison of neutral ones, would, if
examined, be found rather to confirm than disprove the above remark. The
language of a people on these points may, perhaps, serve in some measure
as a key to their moral sentiments. But such speculative disquisitions are
foreign to the purpose of the present work.

138 Human Dispositions in General. [CHAP.

so few degrees advanced, in point of civilization, above the
Indians.

Example II. XX. A nobleman (to come back to Europe) contracts a debt
with a poor tradesman. The same nobleman, presently after-
wards, contracts a debt, to the same amount, to another noble-
man, 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 prin-
ciple 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 pre-
dominates, 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 1 .

Casey. XXI. 7. Where the tendency of the act is good, and the
flood-mo-' motive is the semi-social one of religion. In this case, the dis-
ive, pie y. p os j^j on indicated by it (considered with respect to the influence
of it on the man's conduct towards others) is manifestly a bene-
ficent 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 mani-
fested by such conduct is plainly what every man would call a
good one.

Case 8. XXII. 8. Where the tendency of the act is bad, and the motive
ted~move, * s t ^ iat * religion, as before. In this case the disposition is
religion. dubious. It is good or bad, and more or less good or bad, in the
1 See the case of Duels discussed in B. I. tit, [Homicide}.

XL] Human Dispositions in General. 139

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 dic-
tates of utility.
XXIII. It should seem from history, that even in nations i

a tolerable state of civilization in other respects, the dictates of bad in tins
religion have been found so far to recede from a coincidence ca
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 govern-
ment, where the law itself is either the principal actor or an
accomplice in the mischief. Kavaillac, 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, how-
ever, in France than in any other country during the same
period : and it is remarkable, that in every instance it is this
motive that hasproduced 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

140 Human Dispositions in General. [CHAP.

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 Den-
mark, 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, how-
ever, 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 perse-
cute, whensoever occasion happens, is not yet at an end : inso-
much 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 \

Case 9. XXIV. 9. Where the tendency of the act is yood, and the

<joo4 niV motive (as before) is the dissocial one of ill-will. In this case

lence. 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.

Example. You have detected a baker in selling short weight : you prose-
cute 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
1 See B. I. tit. [Offences against Religion].

XL] Human Dispositions in General. 141

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, themotive 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 Caseio.
motive is the dissocial one of malevolence. In this case the6a 6 -motnre,

-,. .,. . T j f !_ malevolence.

disposition it indicates is of course a mischievous one.

The man who stole the bread from the baker, as before, did it Example,
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 Probiem~to

Human Dispositions in General. [CHAP.

measure the which the mischievousncss or meritoriousness of a man's dis-

depravitym . . . .

a man's dis- position is to be inferred in the gross : we come now to the
position. r _ , . _ . _ .

measure of that mischievousness or meritoriousness, as resulting
from those circumstances. Now with meritorious acts and dis-
positions 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.
A man's dia- XXVII. It is evident, that the nature of a man's disposition

position is , .. . . 1 . .. .

constituted must depend upon the nature of the motives he is apt to be
of his inten- 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 : thedisposition 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 supposedperiod, thosewhich are apparentlyof amischievous
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.

which owe XXVIII. Now intentions, like every thing else, are produced

to motives, 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.

A seducing XXIX, When the act, which a motive prompts a man to

ing motive, engage in, is of a mischievous nature, it may, for distinction's

telary or sake, be termed a seducing or corrupting motive : in which case

motfve. a ry 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.

Tutelary^ XXX. Tutelary motives may again be distinguished into
eitherstand- standing or constant, and occasional. By standing tutelary mo-
sionai. tives, 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 mis-
chievous acts he may be prompted to engage in ; and that with
a force which depends upon the general nature of the act, rather

xi.] Human Dispositions in General. 143

than upon any accidental circumstance with which any indi-
vidual act of that sort may happen to be accompanied. By oc-
casional 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 standing
motive by which a man may not be prompted to engage in

that are of a mischievous nature ; that is, which may not come *' Good " wlll<
to act in the capacity of a seducing motive. It has been shown,
on the other hand, that there are some motives which are re-
markably 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 sup-
position, it gives birth. This same sort of motive may therefore,
without any real contradiction or deviation from truth, beranked
in thenumberof 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 2. The love

of FBDUtti-

semi-social motive of love of reputation. The force of this, like tion.
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

144 Human Dispositions in General. [CHAP.

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 mis-
chievous nature, it can scarcely happen that there shall be no
persons whatever who will look upon it with an eye of disappro-
bation. 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.

3. Thedesire XXXIII. The same observation may be applied to the desire

of amity, though not in altogether equal measure. For, not-
withstanding 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 accom-
panied 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, smug-
glers, and many other denominations of offenders. This, how-
ever, 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 occa-
sional circumstances of the act which it opposes, but upon prin-
ciples as general as those upon which depend the action of the
other semi-social motives.

4. The mo- XXXIV. The motive of religion is not altogether in the same
&k>n. 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

XL] Human Dispositions in General. 145

other : if JEolus was for him, Neptune was against him. ^Eneas,
with all his piety, had but a partial interest at the court of
heaven. That matter stands upon a different footing now-a-
days. 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 alto-
gether with the motive of benevolence. Where it does act, how-
ever, as it does in by far the greatest number of cases, in opposi-
tion 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 mis-
chievousness ; and therefore, with equal force, in whatsoever
circumstances it may be proposed to be committed. This, there-
fore, may also be added to the catalogue of standing tutelary
motives.

XXXV. As to the motives which may operate occasionally occasional
in the character of tutelary motives, these, it has been already tlves maybe
intimated, are of various sorts, and various degrees of strength everl* 11 ^ 80 "
in various offences : 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 pre-
vented from engaging in a projected scheme of house-breaking,
by sitting too long over his bottle 1 , 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 2 ; and so on.

XXXVI. There are some motives, however, which seem more Motives that

1 Love of the pleasures of the
1 Pecuniary interest.
BENTHAM L

146 Human, Dispositions in General. [CHAP.

are particu- apt to act in this character than others ; especially as things are
aX mThis now constituted, now that the law has every where opposed to
are, r i. C Lovo the force of the principal seducing motives, artificial tutelary
2* leif-pre- motives of its own creation. Of the motives here meant it will
servation. ^ necessar y t ^ e a general view. They seem to be reducible
to two heads ; viz. I. 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 op-
posed to the dangers to which a man may be exposed in the
prosecution of it.

Dangers to XXXVII. These dangers may be either, I. Of a purely physi-
preservation cal nature : or, 2. Dangers resulting from moral agency ; in

is most apt . J

in this case other words, from the conduct of any such persons to whom the

spect, are, act, if known, may be expected to prove obnoxious. But moral

purely phy- agency supposes knowledge with respect to the circumstances

2! Dangers that are to have the effect of external motives in giving birth to

on?Stecfion. 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 ; and may, therefore,

be all of them comprised under the article of the danger of

detection.

Danger de- XXXVIII. The danger depending upon detection may be
Setection " divided again into two branches : I. That which may result
lrom, resu from any opposition that may be made to the enterprise by
ontKpot? persons on the spot ; that is, at the very time the enterprise is
quent se ~ carrying on : 2. That which respects the legal punishment, or
punishment. ^ er suffering, that may await at a distance upon the issue of

the enterprise.

The force of XXXIX. It may be worth calling to mind on this occasion,
standing tu- that among the tutelary motives, which have been styled con-
stant ones, there are two of which the force depends (though not

XL] Human Dispositions in General. 147

so entirely as the force of the occasional ones which have been of reputa-
just mentioned, yet in a great measure) upon the circumstance of sire of amity',

detection. These, it may be remembered, are, the love of reputa- up
tion, and the desire of amity. In proportion, therefore, as the tlon *
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 de- strength of
gree of precision, what is to be understood by the strength o/ation?what is
temptation, and what indication it may give of the degree of raeanfc by l4 '
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 offence, the strength of the tempta-
tion 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

L 2

148 Human Dispositions in General. [CHAP.

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.

indications XLI. It remains to be inquired, what indication concern-
afforded by . . i . -. f t i- ...
this and ing the mischievousness or depravity of a man s disposition is

cuinstances afforded by the strength of the temptation, in the case where
thedepra- any offence happens to have been committed. It appears,
offender's then, that the weaker the temptation is, by which a man has
isposi ion. k een overcomej the more depraved and mischievous it shows
his disposition to have been. For the goodness of his disposi-
tion is measured by the degree of his sensibility to the action of
the social motives l : 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 mis-
chievous 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 offence is such as must appear to him highly mis-
chievous, and yet he engages in it notwithstanding, it shows,
that the degree of his sensibility to the force of the social mo-
tives is but slight ; and consequently that his disposition is
pr oportionably 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
1 Supra, par. xxvii, xxviii

XL] Human Dispositions in General. 149

those motives had to overcome : the clearer therefore is the
proof that has been given of the weakness of that influence.

XLIL From what has been said, it seems, that, for judging of Rules fpr
the indication that is afforded concerning the depravity of a th^depra?
man's disposition by the strength of the temptation, compared po^tfon in-
with the mischievousness of the enterprise, the following rules anoffencJ
may be laid down :

Rule i. The strength of the temptation being given, the mis-
chievousness 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 tempta*
tion 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 apprized
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 disposi-
tion 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

150 Human Disposition* in General. [CHAP.

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 mat-
ter 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 sub-
dued. The general and standing bias of every man's nature is,
therefore, towards that side to which the force of the social mo-
tives 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 im-
pulse. 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 dis-
social 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 de-
liberate plan for beating his antagonist, and beats him accord-
ingly, 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 x .

1 See B. I. tit. [Confinement].

XL] Human Dispositions in General. 151

XLIII. The depravity of disposition, indicated by an act, is a Use of this
material consideration in several respects. Any mark of extra- cnap er "
ordinary 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 sym-
pathy 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 sub-
versive of the purposes of punishment.

CHAPTER XII.

OF THE CONSEQUENCES OP A MISCHIEVOUS ACT.

I. Shapes in which the mischief of an act may show itself.

necapituia- 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 inten-
tions : 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.

Mischief of II. The tendency of an act is mischievous when the conse-
quences 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 mis-
chievous, may, such of them as are mischievous, be conceived to
constituteone aggregate body, which maybetermed the mischief
of the act.

ThemiscUief III. This mischief may frequently be distinguished, as it
primary or were, into two shares or parcels : the one containing what
800011 ry * may be called the primary mischief ; the other, what may be

Of the Consequences of a Mischievous Act. 153

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 betermed thesecondary,
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 : I. The original : and, 2. The derivative. By demati'm
the original branch, I mean that which alights upon and is con-
fined 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 conse-
quence of his being a sufferer, and no otherwise. These persons
must, of course, be persons who in some way or other are con-
nected 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 con-
nected 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 l .

V. The secondary mischief, again, may frequently be seen to The
consist of two other shares or parcels : the first consisting of i C Tiarmfor,
pain ; the other of danger. The pain which it produces is a ' anger '
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 9 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 Example.

1 See ch. vi. [Sensibility],

154 Of tfa Consequences of a Mischievous Act. [CHAP.

attacks you on the road, and robs you. You suffer a pain on
the occasion of losing so much money 1 : 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 2 . 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 the 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, ac-
cording 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 com-
mitted 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.

1 Viz. a pain of privation. See ch. v. [Pleasures and Pains], xvii.

8 Viz. a pain of apprehension, grounded on the prospect of organical
pain, or whatever other mischiefs might have ensued from the ill treat-
ment. Ib. xxx.

xii.] Of the Consequences of a Mischievous Act. 155

VII. Let us see what this chance amounts to ; and whence The danger,
it comes. How is it, for instance, that one robbery can contri- arises a
bute to produce another ? In the first place, it is certain that aflfords no*
it cannot create any direct motive. A motive must be the tiro to "
prospect of some pleasure, or other advantage, to be enjoyed 111 **

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 ope-
rate 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 But it su$-
should seem, to produce another robbery, are two. I. By sug- Biiity, and
gesting to a person exposed to the temptation, the idea of com- fo?oe ofre- 16
mitting such another robbery (accompanied, perhaps, with the motives?
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, I. The motive of benevolence, which acts as a
branch of the physical sanction 2 . 2. The motive of self-pre-
servation, as against the punishment that may stand provided
by the political sanction. 3. The fear of shame ; a motive be-
longing to the moral sanction. 4. The fear of the divine dis-
pleasure ; 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 V iz.
with which the political sanction tends to prevent a future l

1 See ch. xi. [Dispositions], xl.

1 To wit, in virtue of the pain it may give a man to bo a witness to, or
otherwise conscious of, the sufferings of a fellow-creature : especially when
he is himself the cause of them : in a word, the pain of sympathy. See
ch. v. [Pleasures and Pains], xxvi.

156 Of the Consequences of a Mischievous Act. [CHAP.

the political robbery, may be thus conceived. The way in which this sane-
sanction. t j on tends to prevent a robbery, is by denouncing some par-
ticular 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 uncer-
tainty is proportionably increased by every instance in which a
man is known to commit the offence, without undergoing the
punishment. This, of course, will be the case with every offence
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 offence is then at last, but not till then, put
a stop to.

2. Those is- X. The way in which a past robbery may weaken the force
the moral, 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 un-
punished, robberies are committed without shame. It was thus
amongst the Grecians formerly l . It is thus among the Arabs
still,
it is said to XI. In whichever way then a past offence tends to pave the

operate by ,, ..,,

the influ- way for the commission of a future offence, whether by suggest-
~ ing the idea of committing it, or by adding to the strength of

1 See Horn. Odyss. L. xix. 1. 395 ; ib. L. iii. L 71. Plato de Rep. L. i.
p. 576, edit. Ficin. Thucyd. L. i. and see B. I. tit. [Offences against
external security].

xii.] Of tJie Consequences of a Mischievous Act. 157

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
the alarm and the danger, must not be confounded : though ger, though"

intimately connected, they are perfectly distinct : either may areistn-
subsist without the other. The neighbourhood may be alarmed gulfl a e *
with the report of a robbery, when, in fact, no robbery either
has been committed or is in a way to be committed : a neigh-
bourhood 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, Both may
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 others.' r
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 l .

XIV. The distinction between the primary and the secondary The primary
consequences of an act must be carefully attended to. It is so quences of
just, that the latter may often be of a directly opposite nature to be miscMev-
the former. In some cases, where the primary consequences of secondary e
the act are attended with a mischief, the secondary consequences ene cia "
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

1 To the former of these branches is opposed so much of the force of any
punishment, as is said to operate in the way of reformation : to the latter,
so much as is said to operate in the way of example. See ch. liii. [Cases
unmeet], par. ii. note.

*5& Of M ie Consequences of a Mischievous Act. [CHAP.

case, in as far as it tends to restrain them from committing such
acts, it is of a beneficial nature.
Analysis of XV. Thus much with regard to acts that produce positive

the different r *

* n ' an( * that * mme( ^ ate ly- This case ky reason of its sim-

mischief of plicity, seemed the fittest to take the lead. But acts may pro-
show itself, duce mischief in various other ways ; which, together with
those already specified, may all be comprized by the following
abridged analysis.

Mischief may admit of a division in any one of three points
of view. I. 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, con-
sisting of the loss of pleasure. Whether simple or complex, and
whether positive or negative, it may be either certain or contin-
gent. 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 : I. 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 3 individual, or assem-

1 There may be other points of view, according to which mischief might
be divided, besides these : but this does not prevent the division here given
from being an exhaustive one. A line may be divided in any one of an
infinity of ways, and yet without leaving in any one of those cases any
remainder. See ch. xvi. [Division] i. note.

8 Ch. v. [Pleasures and Pains] i.

8 See ch. xvi. [Division] iv. note.

xii.] Of the Consequences of a Mischievous Act. 159

blage of individuals, or else a multitude of unassignable indi-
viduals. 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
offences l .

The cases which have been already illustrated, are those in applied to
which the primary mischief is not necessarily otherwise than a ing cases,
simple one, and that positive : present, and therefore certain :
producible by a single action, without any necessity of the con-
currence of any other action, either on the part of the same
agent, or of others ; and having for its object an assignable in-
dividual,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 to exam-
most material of the modifications above exhibited. cases* where

A man drinks a certain quantity of liquor, and intoxicates is fes^coni 6
himself. The intoxication in this particular instance does him Example I.

1 Ch. xvi.

160 Of the Consequences of a Mischievous Act. [CJIAP.

An act of no sort of harm : or, what comes to the same thing, none that is
cation. 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 con-
stitution 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, there-
fore, is one instance where the mischief producible by the act is
contingent ? in other words, in which the tendency of the act is
no other wise 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 practised 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 pro-
duces 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.
Example II. XVII. Again. A man omits paying his share to a public

Non-pay- . .../<- x

ment of a tax. This we see is an act of the negative kind l . Is this then
to be placed upon the list of mischievous acts ? Yes, certainly.
Upon what grounds ? Upon the following. To defend the com-
munity 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 partof 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
1 See ch, vii. [Actions] viii.

xii.] Of the Consequence* of a Mischlevoiis Act. 161

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 defence 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 mis-
chief. 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 sup-
position, 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

BENTHAM M

Of the Consequences of a Mischievous Act. [CHAP.

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 non-
payment, of proving mischievous. It is possible that the same
services, precisely, might havebcen 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 per-
fectly 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 from 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 mis-
chief, 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.

No alarm, XVIII. It may now be time to observe, that it is only in the
case where the mischief is extra-regarding, and has an assign-
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

xii.] Of the Consequences of a Mischievous Act. 163

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 non-
payment 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 imme-
diately 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 defence, might invade the country, and exact from it much
heavier contributions than those which had been thus with-
holden 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, &c. may influence the mischief
of an act.

XIX. We have seen the nature of the secondary mischief , Secondary
which is apt to be reflected, as it were, from the primary, in the iiuenced by

cases where the individuals who are the objects of the mischief the agent 1 *?

mind.

1 The investigation might, by a process rendered obvious by analogy, bo
extended to the consequences of an act of a beneficial nature. In both
instances a third order of consequences may be reckoned to have taken
place, when the influence of the act, through the medium of the passive
faculty of the patient, has come to affect his active faculty. In this way,
I. Evil may flow out of evil : instance ; the exertions of industry put a
stop to by the extinction of inducement, resulting from a continued chain
of acts of robbery or extortion. 2. Good out of evil: instance; habits of
depredation put a stop to by a steady course of punishment. 3. Evil out
of good : instance; habits of industry put a stop to by an excessive course
of gratuitous bounty. 4. Good out of good : instance ; a constant and
increasing course of industry, excited and kept up by the rewards afforded
by a regular and increasing market for the fruits of it.

M2

164 Of the Consequences of a Mischievous Act. [CHAP.

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. I. 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 in-
fluences of the articles of intentionality and consciousness may
be represented in the several cases following.

Casei. XX. Case I. Where the act is so completely unintentional,
Involuntan- i i *

ness. 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.

Case 2. XXI. Case 2. Where the act, though not unintentional, is un-
advisedy insomuch that the mischievous part of the consequences
is unintentional, but the unadviscdness is attended with heedless-
ness. 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 fulness of the
street, and so forth. He has done mischief, it may be said, by

xii.] Of the Consequences of a Mischievous Act. 165

his carelessness, already : who knows but that on otheroccasions
the like cause may produce the like effect ?

XXII. Case 3. Where the act is misadvised with respect to a case s-
circumstance, which, had it existed, would fully have excluded or JJ ^complete
(what comes to the same thing) outweighed the primary mis- {yfthout* 1011 '
chief : and there is no rashness in the case. In this case the act ra8hness>

is 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 Case 4.
circumstance which would have excluded or counterbalanced the ofa S part?af
primary mischief in party but not entirely : and still there is no j wuhout I0llf
rashness. In this case the act is attended with some degree of rasmess *
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 .Case 5.

a circumstance, which, had it existed, would have excluded or withrasii 88 '
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 inten- case o.
tional, and there is no missupposal in the case. In this case the qi^ces
secondary mischief is at the highest. fntcntional,

XXVI. Thus much with regard to iutentionality and con- JJJjJ/ m?s-
sciousness. We now come to consider in what manner

secondary mischief is affected by the nature of the motive. of a motive

J . .... . takes not

Where an act is pernicious in its primary consequences, the away the
secondary mischief is not obliterated by the goodness of the mo- the second-
tive ; though the motive be of the best kind. For, notwith- queuces.
standing 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 in-
stances : although this is not so likely to happen from a good
motive as from a bad one 1 .

1 An act of homicide, for instance, is not rendered innocent, much lees
beneficial, merely by its proceeding from a principle of religion, of honour

1 66 Of the Consequences of a Mischievous Act. [CHAP.

Nor the XXVII. An act, which, though pernicious in its primary

ness. 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 1 .

But it may XXVIII. But when not only the primary consequences of an
the mis- act are pernicious, but, in other respects, the secondary likewise,
ness, where the secondary mischief may be aggravated by the nature of the
mischievous, motive : so much of that mischief, to wit, as respects the future
behaviour of the same person.

But not the XXIX. It is not from the worst kind of motive, however,
most in the

(that is, of love of reputation) or even of benevolence. When Ravaillac
assassinated Henry IV. it was from a principle of religion. But this did
not so much as abate from the mischief of the act. It even rendered the
act still more mischievous, for a reason that we shall see presently, than if
it had originated from a principle of revenge. When the conspirators
against the late king of Portugal attempted to assassinate him, it is said
to have been from a principle of honour. But this, whether it abated or
no, will certainly not be thought to have outweighed, the mischief of the
act. Had a son of Ravaillac's, as in the case before supposed l , merely on
the score of filial affection, and not in consequence of any participation in
his crime, put him to death in order to rescue him from the severer hands
of justice, the motive, although it should not be thought to afford any
proof of a mischievous disposition, and should, oven in case of punishment,
have made such rescuer an object of pity, would hardly have made the act
of rescue a beneficial one.

1 The prosecution of offences, for instance, proceeds most commonly
from one or other, or both together, of two motives, the one of which is of
the self-regarding, the other of the dissocial kind : viz. pecuniary interest,
and ill-will : from pecuniary interest, for instance, whenever the obtaining
pecuniary amends for damage Buffered is one end of the prosecution. It is
common enough indued to hear men speak of prosecutions undertaken from
public spirit; "which is a branch, as we have seen 2 , of the principle of bene-
volence. Far be it from me to deny but that such a principle may very
frequently be an ingredient in the sum of motives, by which men are
engaged in a proceeding of this nature. But whenever such a proceeding
is engaged in from the sole influence of public spirit, uncombined with the
least tincture of self-interest, or ill-will, it must be acknowledged to be a
proceeding of the heroic kind. Now acts of heroism are, in the very essence
of them, but rare : for if they were common, they would not be acts of
heroism. But prosecutions for crimes are very frequent, and yet, unless
in very particular circumstances indeed, they are never otherwise than
beneficial.

1 Ui. xi. ^position] *v. 2 See cli. x. [Motives] xxv.

xir.] Of the Consequences of a Mischievous Act. 167

that the secondary mischief of an act receives its greatest aggra- case of the
,. worst mo-

vation. tives.

XXX. The aggravation which the secondary mischief of an it does the
act, in as far as it respects the future behaviour of the same more'con-

- , , . P ... .,.._. , siderablethe

person, receives from the nature of a motive in an individual tendency of
case, is as the tendency of the motive to produce, on the part of ^produce
the same person, acts of the like bad tendency with that of the suc
act in question.

XXXI. The tendency of a motive to produce acts of the like which is
kind, on the part of any given person, is as the strength and strength and
constancy of its influence on that person, as applied to the pro- c ns ancy '
duction of such effects.

XXXII. The tendency of a species of motive to give birth to General effi-
acts of any kind, among persons in general, is as the strength, speck* o>
constancy, and extensiveness l of its influence, as applied to the Seaured? w
production of such effects.

XXXIII. Now the motives, whereof the influence is at once A mischicv-
most powerful, most constant, and most extensive, are the mo- more so, m
tives of physical desire, the love of wealth, the love of ease, the fironfa self-
love of life, and the fear of pain : all of them self -regarding than when
motives. The motive of displeasure, whatever it may be in point ciaTmotive?
of strength and extensiveness, is not near so constant in its in-
fluence (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 mis-
chievous as the same pernicious act, when committed by force of
any one of those other motives 2 .

1 Ch. iv. [Value].

8 It is for this reason that a threat, or other personal outrage, when com-
mitted on a stranger, in pursuance of a scheme of robbery, is productive of
more mischief in society, and accordingly is, perhaps, every where more
severely punished, than an outrage of the same kind offered to an acquaint-
ance, in prosecution of a scheme of vengeance. No man is always in a
rage. But, at all times, every man, more or less, loves money. Accord-
ingly, although a man by his quarrelsomeness should for once have been
engaged in a bad action, he may nevertheless remain a long while, or even
his whole life-time, without engaging in another bad action of the same
kind: for he may very well remain his whole life-time without engaging in
so violent a quarrel : nor at any rate will he quarrel with more than one,

1 68 Of the Consequences of a Mischievous Act, [CHAP.

XXXIV. As to the motive of religion, whatever it may
in& from the sometimes prove to be in point of strength and constancy, it is
religion. 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 1 . A pernicious act, therefore, when com-
mitted through the motive of religion, is more mischievous than
when committed through the motive of ill-will.

HOW the XXXV. Lastly, The secondary mischief, to wit, so much of it

mischiefis as hath respect to the future behaviour of the same person, is

by disposi- aggravated or lessened by the apparent depravity or beneficence

of his disposition : and that in the proportion of such apparent

depravity or beneficence.

Connexion XXXVI. The consequences we have hitherto been speaking

the succeed- of , are the natural consequences, of which the act, and the other

mg c pter. ar ^ c j cs wc h ave 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

or a few people at a time. But if a man, by his love of money, has once
been engaged in a bad action, such as a scheme of robbery, he may at any
time, by the influence of the same motive, be engaged in acts of the same
degree of enormity. For take men throughout, if a man loves money to a
certain degree to-day, it is probable that he will love it, at least in equal
degree, to-morrow. And if a man is disposed to acquire it in that way, he
will find inducement to rob, wheresoever and whensoever there are people
to be robbed.

1 If a man happen to take it into his head to assassinate with his own
hands, or with the sword of justice, those whom he calls heretics, that is,
people who think, or perhaps only speak, differently upon a subject which
neither party understands, he will be as much inclined to do this at one
time as at another. Fanaticism never sleeps : it is never glutted : it is
never stopped by philanthropy ; for it makes a merit of trampling on phi
lanthropy: it is never stopped by conscience; for it has pressed conscience
into its service. Avarice, lust, and vengeance, have piety, benevolence,
honour ; fanaticism has nothing to oppose it.

xii.] Of the Consequences of a Mischievous Act. 169

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.

i. General view of cases unmeet for punishment.

The end of I. THE general object which all laws have, or ought to have,
augment in common, is to augment the total happiness of the community ;

happiness. , , . ,7 , i ^ i i r t

and therefore, 111 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.

Butpunish- II. But all punishment is mischief : all punishment in itself
ment is an . . ....

evil. 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 *.

What concerns 1 What f ollows, relative to the subject of punishment, ought regularly to
leveraf other ^ e preceded by a distinct chapter on the ends of punishment. But having
topics relative little to say on that particular branch of the subject, which has not been
dismissed"}? 11 ' said before, it seemed better, in a work, which will at any rate be but too
another work, voluminous, to omit this title, reserving it for another, hereafter to be pub-
lished, intituled The Theory of Punishment \ To the same work I must
refer the analysis of the several possible modes of punishment, a particular
and minute examination of the nature of each, and of its advantages and
disadvantages, and various other disquisitions, which did not seem abso-
lutely necessary to be inserted here. A very few words, however, concern-
ing the ends of punishment, can scarcely bo dispensed with.

concise view of The immediate principal end of punishment is to control action. This

punishment, action is either that of the offender, or of others : that of the offender it

controls by its influence, either on his will, in which case it is said to

operate in the way of reformation; or on his physical power, in which case

1 This is the work which, from the Author's papers, has since been published by Mr.
Pumont in French, in company with The Theory of Keward added to it, for the purpose of
mutual illustration. It is in contemplation to publish them both in English, from the
Author's manuscripts, with the benefit of any amendments that have been made by Mr.
Duinont. [Note to Edition of 1823.]

Cases Unmeet for Punishment. 171

III. It is plain, therefore, that in the following cases punish- Therefore

, i , i, i n- , 1 ought not to

ment ought not to be inflicted. be admitted;

1. Where it is groundless: where there is no mischief for it 1 - Where

, . . , . groundless.

to prevent ; the act not being mischievous upon the whole.

2. Where it must be inefficacious: where it cannot act so as 2. ineffica-
to prevent the mischief.

3. Where it is unprofitable, or too expensive: where the s. Unprofit-
mischief it would produce would be greater than what it pre-
vented.

4. Where it is needless: where the mischief may be prevented, 4. Or need-
or cease of itself, without it : that is, at a cheaper rate.

2. Cases in which punishment is groundless.

These are,

IV. i. Where there has never been any mischief : where no i. Where
mischief has been produced to any body by the act in question, never been
Of this number are those in which the act was such as might, on dlfcf^as in
some occasions, be mischievous or disagreeable, but the person consS
whose interest it concerns gave his consent to the performance of

it l . This consent, provided it be free, and fairly obtained \ is
the best proof that can be produced, that, to the person who

it is said to operate by disablement : that of others it can influence no other-
wise than by its influence over their wills ; in which case it is said to ope-
rate in the way of example. A kind of collateral end, which it has a
natural tendency to answer, is that of affording a pleasure or satisfaction
to the party injured, where there is one, and, in general, to parties whose
ill- will, whether on a self -regard ing account, or on the account of sympathy
or antipathy, has been excited by the offence. This purpose, as far as it
can be answered gratis, is a beneficial one. But no punishment ought to
bo allotted merely to this purpose, because (setting aside its effects in the
way of control) no such pleasure is ever produced by punishment as can
be equivalent to the pain. The punishment, however, which is allotted to
the other purpose, ought, as far as it can be done without expense, to be
accommodated to this. Satisfaction thus administered to a party injured,
in the shape of a dissocial pleasure l , may be styled a vindictive satisfaction
or compensation : as a compensation, administered in the shape of a self-
regarding profit, or stock of pleasure, may be styled a lucrative one. See
B. I. tit. vi. [Compensation]. Example is the most important end of all,
in proportion as the number of the persons under temptation to offend is to
one.

1 See B. I. tit. [Justifications].

l Seech, x, [Motive*].

Cases Unmeet for Punishment. [CHAP.

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.
2. where V. 2. Where the mischief was outweighed : although a mis-
10 chief was produced by that act, yet the same act was necessary

in e p^ecaii- as to the production of a benefit which was of greater value l than

(iamity f nst the mischief. This may be the case with any thing that is done

exCTciso of * n *^ e Wa 7 f precaution against instant calamity, as also with

powers. an y 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 2 .

s.-or will, VI. 3. Where there is a certainty of an adequate compensa-
tainty be tion : and that in all cases where the offence can be committed.
cprnpensa- This supposes two things : I. 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 .

3. Cases in which punishment must be inefficacious.

These are,
i. Where VII. I. Where the penal provision is not established until

the penal L L

1 See supra, eh. iv. [Value].

a See Book I. tit. [Justifications].

Hence the 3 This, for example, seems to have been one ground, at least, of the

favour shown to f av our shown by perhaps all systems of laws, to such offenders as stand

the offences of . .. * i i. i IT n -i -i^n

responsible upon a footing of responsibility : shown, not directly indeed to the persons

afshnpfe iner. h themselves; butto such offences as none but responsible persons are likely

cantiie frauds, to have the opportunity of engaging in. In particular, this seems to be

the reason why embezzlement, in certain cases, has not commonly been

punished upon the footing of theft : nor mercantile frauds upon that of

common sharping \

l Bee tit. [Simple mere. Defraudment],

xin.J Cases Unmeet for Punishment. 173

after the act is done. Such are the cases, I. Of an ex-post-facto provision
law ; where the legislator himself appoints not a punishment till latefas in,
after the act is done. 2. Of a sentence beyond the law ; where /ac/"iaw,
the judge, of his own authority, appoints a punishment which the lessen"
legislator had not appointed. tence '

VIII. 2. Where the penal provision, though established, is not 2. Or is
conveyed to the notice of the person on whom it seems intended known : as
that it should operate. Such is the case where the law has sufficiently
omitted to employ any of the expedients which are necessary, to gated? "
make sure that every person whatsoever, who is within the reach

of the law, be apprized 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 l .

IX. ^. Where the penal provision, though it were conveyed 3. where the

> fj j * \-' -XT. L will cannot

to a man s notice, could produce no effect on him, with respect to be deterred
the preventing him from engaging in any act of the sort in ques- act : as in,
tion. Such is the case, I. In extreme infancy; where a man [a] infancy.
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 ; [b] 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 [c]

deprived of it by the transient influence of a visible cause : such ^ lon *
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 2 .

1 Sec B. II. Appendix, tit. iii. [Promulgation].

2 Notwithstanding what is here said,the cases of infancy and intoxication in infancy and
(as we shall see hereafter) cannot be looked upon in practice as affording c^canhardij
sufficient grounds for absolute impunity. But this exception in point of |> proved to^
practice is no objection to the propriety of the rule in point of theory. {J. eun * rt e
The ground of the exception is neither more nor less than the difficulty

there is of ascertaining the matter of fact : viz. whether at the requisite
point of time the party was actually in the state in question ; that is,
whether a given case comes really under the rule. Suppose the matter of
fact capable of being perfectly ascertained, without danger or mistake, the

174 COM* Unmeet for Punishment. [ciu?.

4. or not. X. 4. Where the penal provision (although, being conveyed
div?duaf act to the party's notice, it might very well prevent his engaging in
as US 88 n ' acts of the sort in question, provided he knew that it related to

those acts) could not have this effect, with regard to the indi-
vidual 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 pro-
fa] Uninten- vision relates. This may happen, i. In the case of unintention-

tionality. . ./ rr

ahty ; where he intends not to engage, and thereby knows not
that he is about to engage, in the act in which eventually he is

[b] Uncon- about to engage l . 2. In the case of unconsciousness ; where,

sciousne&s. i , i -. i i * i

although he may know that he is about to engage in the act
itself, yet, from not knowing all the material circumstances at-
tending it, he knows not of the tendency it has to produce that
mischief, in contemplation of which it has been made penal in

[c] Missup- most instances. 3. In the case of missupposal ; where, although
posa. k e mav ] cnow O f 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 beeii
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 2 .

5. Or is acted XL 5. Where, though the penal clause might exercise a full
opposite^- and prevailing influence, were it to act alone, yet by the pre-
penor force: ^ omt ; na ^ 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

impropriety of punishment would be as indubitable in these cases as in any

other \

The reason for The reason that is commonly assigned for the establishing an exemption
fftS'three from punishment in favour of infants, insane persons, and persons under
nfon? "STon iwtoxication, is either false in fact, or confusedly expressed. The phrase is,
a wrong 1 upon that the will of these persons concurs not with the act; that they have no
footing. vicious will ; or, that they have not the free use of their will. But suppose

all this to be true? What is it to the purpose? Nothing: except in as

far as it implies the reason given in the text.

1 See ch. viii. [Intentionality].

2 See ch. ix. [Consciousness].

1 See B, I. tit. iv. [Exemptions], and tit. vii. [Extenuations].

xiii.] Cases Unmeet for Punishment. 175

great, that the evil denounced by the penal clause, in case of his
engaging in it, cannot appear greater. This may happen, I. In [a] Physical
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 [b] Threat-
appears likely to be brought about through the intentional and chief.
conscious agency of man l .

XII. 6. Where (though the penal clause may exert a full and 6. or the
prevailing influence over the will of the party) yet his physical sans cannot
faculties (owing to the predominant influence of some physical termination:
cause) are not in a condition to follow the determination of the "* un er

will : insomuch that the act is absolutely involuntary. Such is

** ^ compulsion

the case of physical compulsion or restraint, by whatever means or restraint.
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. I. Where, on the one hand, the nature of the offence, on i. Where,
the other hand, that of the punishment, are, in the ordinary state o? case'Si
of things, such, that when compared together, the evil of the pS?i1si?men?
latter will turn out to be greater than that of the former. duce nSJre

XIV. Now the evil of the punishment divides itself into four
branches, by which so many different sets of persons are affected.

I. The evil of coercion or restraint : or the pain which it gives a cible b y a

r & punishment

man not to be able to do the act, whatever it be, which by the f four

branches

apprehension of the punishment he is deterred from doing. This viz. [a] Re-

1 The influences of the moral and religious sanctions, or, in other words, why the in-
of tho motives of love of reputation and religion, are other causes, the force JJoraSand re?
of which may, upon particular occasions, come to be greater than that of ^[s^ sane-
any punishment which the legislator is able, or at least which he will think mentioned in
proper, to apply. These, therefore, it will bo proper for him to have his tht sarae vlew -
eye upon. But the force of these influences is variable and different in
different times and places: the force of the foregoing influences is constant
and the same, at all times and every where. These, therefore, it can never
be proper to look upon as safe grounds for establishing absolute impunity :
owing (as in the above-mentioned cases of infancy and intoxication) to tho
impracticability of ascertaining the matter of fact.

176 Cases Unmeet for Punishment. [CHAP.

bj Appro- is felt by those by whom the law is observed. 2. The evil of
apprehension : or the pain which a man, who has exposed him-
self 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 l : 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
[d] Dewa- whom it comes actually to be executed. 4. The pain of sym-
pathy, and the other derivative evils resulting to the persons
who are in connection with the several classes of original suf-
ferers just mentioned 2 . 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.

(The evil of XV. On the other hand, as to the evil of the offence, this will

being dif- also, of course, be greater or less, according to the nature of each

cording to offence. The proportion between the one evil and the other will

of the a of- re therefore be different in the case of each particular offence. The

not be re- cases, therefore, where punishment isunprofitableonthisground,

Sere?) lted can by no other means be discovered, than by an examination of

each particular offence ; which is what will be the business of

the body of the work.

2.-Orinthe XVI. 2. Where, although in the ordinary state of things, the
case in evil resulting from the punishment is not greater than the benefit
rewonoY y 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 offences, yet it may have been rendered so by the influence of
some occasional circumstances. In the number of these circum-
|a] The stances may be, I. 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.

1 See ch. v. [Pleasures and Pains].
8 See ch. xii. [Consequences] iv.

XIIT.] Cases Unmeet for Punishment. 177

2. The extraordinary value of the services of some one delin- n>] The
quent ; in the case where the effect of the punishment would delinquent's
be to deprive the community of the benefit of those services.

3. The displeasure of the people ; that is, of an indefinite number [cj Th
of the members of the same community, in cases where (owing to of the
the influence of some occasional incident) they happen to con-
ceive, that the offence 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 [d] The
body, or a considerable number of the members of some/orei'</n onSnM
community or communities, with which the community in ques- poweis
tion is connected.

5. Cases where punishment is needless.

These are,
XVII. I. Where the purpose of putting an end to the practice 1- where

L

. ., ~ , . . .

may be attained as effectually at a cheaper rate : by instruction, is to be

... 11 T_ A -L. j.\ i prevented at

for instance, as well as by terror : by informing the under- a cheaper

rate * as

standing, as well as by exercising an immediate influence on the
will. This seems to be the case with respect to all those offences By iustruo-
which consist in the disseminating pernicious principles in mat-
ters 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 incul-
cate 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 per-
nicious, 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.

BENTHAM jf

CHAPTEE XIV.

OF THE PROPORTION BETWEEN PUNISHMENTS AND OFFENCES.

Recapituia- I. WE have seen that the general object of all laws is to pre-
vent 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.

F f U ui^h Cts ^' When it is worth while, there are four subordinate designs

mcnt. 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 pro-
pose to himself.

1st object III. i. His first, most extensive, and most eligible object, is

to prevent . . . . .. , - . , ., *

all offences, to prevent, in as far as it is possible, and worth while, all sorts

of offences whatsoever l : in other words, so to manage, that no
offence whatsoever may be committed.

2d Object IV. 2. But if a man must needs commit an offence of some

the worst kind or other, the next object is to induce him to commit an

offence less mischievous, rather than one more mischievous : in

other words, to choose always the least mischievous, of two

offences that will either of them suit his purpose.

3d Object V. 3. When a man has resolved upon a particular offence, the

down 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.

4th Object VI. 4. The last object is, whatever the mischief be, which it

least a is proposed to prevent, to prevent it at as cheap a rate as
expense. ., i

possible.

Rules of VII. Subservient to these four objects, or purposes, must be
proportion J L L

1 By offences I mean, at present, acts which appear to him to have a
tendency to produce mischief*

Proportion between Punishments ami Offences. 179

the rules or canons by which the proportion of punishments l to between
offences is to be governed. ments and

VIII. Rule i, i. The first object, it has been seen, is to

prevent, in as far as it is worth while, all sorts of offences ;
therefore, the offence.

The value of the punishment must not be less in any case than
what is sufficient to outweigh that of the profit 2 of the offence 3 .

If it be, the offence (unless some other considerations,
independent of the punishment, should intervene and operate
efficaciously in the character of tutelary motives 4 ) will be
sure to be committed notwithstanding 5 : the whole lot of

1 The same rules (it is to be observed) may be applied, with little varia- The same rule
tion, to rewards as well as punishment : in short, to motives in general, SS/ves in to
which, according as they arc of the pleasurable or painful kind, are of the general
nature of reward or punishment : and, according as the act they are applied

to produce is of the positive or negative kind, are styled impelling or re-
straining. See ch. x. [Motives] xliii.

2 By the profit of an offence, is to be understood, not merely the pecu- Profit may be
niary profit, but the pleasure or advantage, of whatever kind it be, which k( n a d, y a s l w2i as
a man reaps, or expects to reap, from the gratification of the desire which pecuniary.
prompted him to engage in the offence *.

It is the profit (that is, the expectation of the profit) of the offence that impropriety of
constitutes the impelling motive, or, where there are several, the sum of {he punSSment
the impelling motives, by which a man is prompted to engage in the offence. ^eMe'mthVhe
It is the punishment, that is, the expectation of the punishment, that con- temptation.
stitutes the restraining motive, which, either by itself, or in conjunction
with others, is to act upon him in a contrary direction, so as to induce him
to abstain from engaging in the offence. Accidental circumstances apart,
the strength of the temptation is as the force of the seducing, that is, of
the impelling motive or motives. To say then, as authors of great merit
and great name have said, that the punishment ought not to increase with
the strength of the temptation, is as much as to say in mechanics, that the
moving force or momentum of the power need not increase in proportion to
the momentum of the burthen.

8 Beccaria, dei diletti, 6. id. trad. par. Morellet, 23.

See ch. xi. [Dispositions] xxix.

6 It is a well-known adage, though it is to be hoped not a true one, that
every man has his price. It is commonly meant of a man's virtue. This
saying, though in a very different sense, was strictly verified by some of
the Anglo-Saxon laws : by which a fixed price was set, not upon a man's
virtue indeed, but upon his life : that of the sovereign himself among the
rest. For 200 shillings you might have killed a peasant : for six times as
much, a nobleman: for six-and- thirty times as much you might have killed
the king a . A king in those days was worth exactly 7,200 shillings. If
then the heir to the throne, for example, grew weary of waiting for it, he
had a secure and legal way of gratifying his impatience: he had but to kill

1 See ch. x.f Motives]! 1.

2 Wilkins* Leg. Anglo-Sax, p. 71, 72. See Hume, Vol. I. App. I. p. 219.

180 Of the Proportion between [CHAP.

punishment will be thrown away : it will be altogether ineffi-
cacious l .

The pro- IX. The above rule has been often objected to, on account of

taking the its seeming harshness : but this can only have happened for want

the tempts of its being properly understood. The strength of the tempta-

ground of tion, cceteris paribus, is as the profit of the offence : the quantum

noobjectioii of the punishment must rise with the profit of the offence :

" cccteris paribus, 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 2 . 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 orbeneficenceof the

offender's disposition, canoperate, the strength of the temptation

may operate in abatement of the demand for punishment. But

it can never operate so far fs 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 offence.

The partial benevolence which should prevail for the re-
duction 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 to the

the king with one hand, and pay himself with the other, and all was right.
An earl Godwin, or a duke Streon, could have bought the lives of a whole
dynasty. It is plain, that if ever a king in those days died in his bed, he
must have had something else, besides this law, to thank for it. This being
the production of a remote and barbarous age, the absurdity of it is pre-
sently recognised : but, upon examination, it would be found, that the
freshest laws of the most civilised nations are continually falling into the
same error 1 . This, in short, is the case wheresoever the punishment is
fixed while the profit of delinquency is indefinite : or, to speak more pre-
cisely, where the punishment is limited to such a mark, that the profit of
delinquency may reach beyond it.

1 See ch. xiii. [Cases unmeet], i.

8 See ch. xi. [Dispositions], xlii.

1 See in particular the English Statute laws throughout, Bonaparte's Penal Code, and
the recently enacted or not enacted Spanish Penal Code. Note by the Author, July 1822.

xiv.] Punishments and Offences. 181

very persons in whose behalf it 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 want of an ade-
quate protection, to lie exposed to the mischief of the offence :
cruelty even to 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 Rule 2.
in a given degree by a given quantity of punishment, is never more^inst
any thing better than a chance ; for the purchasing of which, of$mce than
whatever punishment is employed, is so much expended in a 8ma11 one *
advance. However, for the sake of giving it the better chance

of outweighing the profit of the offence,

The greater the mischief of the offence, the greater is the ex-
pense, which it may be worth while to be at, in the way of
punishment l .

XI. Rule 3. The next object is, to induce a man to choose Rules,
always the least mischievous of two offences ; therefore ieast e of two

Where two offences come in competition, the punishment for the bopreferred.
greater offence must be sufficient to induce a man to prefer the
less 2 .

XII. Rule 4. When a man has resolved upon a particular Rule 4.
offence, the next object is, to induce him to do no more mischief SparUcie
than what is necessary for his purpose : therefore mischief.

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 from giving birth to it 3 .

1 For example, if it can ever bo worth while to be at the expense of so Example.
horriblo a punishment as that of burning alive, it will be more so in the an^colSng^
view of preventing such a crime as that of murder or incendiarism, than in
the view of preventing the uttering of a piece of bad money. See B. I. tit.
[Defraudment touching the Coin] and [Incendiarism].

a Espr. des Loix, L. vi. c. 16.

8 If any one have any doubt of this, let him conceive the offence to bo Example.
divided into as many separate offences as there are distinguishable parcels JjJd mon4r ivcn
of mischief that result from it. Let it consist, for example, in a man's stolen.
giving you ton blows, or stealing from you ten shillings. If then, for giving
you ten blows, he is punished no more than for giving you five, the giving

Of the Proportion between [CHAP.

Rules. XIII. Rule 5. The last object is, whatever mischief is
nodegw> guarded against, to guard against it at as cheap a rate as
special* possible : therefore
reason. y^ punishment ought in no case to be more than what is

necessary to bring it into conformity with the rules here given.
Rule 0. XIV. Rule 6. It is further to be observed, that owing to the
circum- different manners and degrees in which persons under different
influencing circumstances are affected by the same exciting cause, a punish-
sensi 1 1 y. men ^ wh^ {$ ^he same J n 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 inflicted on each individual offender
may correspond to the quantity intended for similar offenders in
general, the several circumstances influencing sensibility ought
always to be taken into account l .

Comparative XV. Of the above rules of proportion, the four first, we may
above rules, perceive, serve to mark out the limits on the side of diminution ;
the limits below which a punishment ought not to be dimi-
nished : 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 cal-
culated, in some measure, indeed, for the same purpose ; but
principally for guiding the judge in his endeavours to conform,
on both sides, to the intentions of the legislator.

Into the XVI. Let us look back a little. The first rule, in order to
the^a?ucof a render it more conveniently applicable to practice, may need
perhaps to be a little more particularly unfolded. It is to be

you five of these ten blows is an offence for which there is no punishment
at all : which being understood, as often as a man gives you five blows, he
will be sure to give you five more, since he may have the pleasure of giving
you these five for nothing. In like manner, if for stealing from you ten
shillings, he is punished no more than for stealing five, the stealing of the
remaining five of those ten shillings is an pffence for which there is no
punishment at all. This rule is violated in almost every page of every body
of laws I have ever seen.

The profit, it is to be observed, though frequently, is not constantly, pro-
portioned to the mischief : for example, where a thief, along with the things
he covets, steals others which are of no use to him. This may happen
through wantonness, indolence, precipitation, &c. &c.

1 See ch. vi. [Sensibility!.

xiv.] Punishments and Offences. 183

observed, then, that for the sake of accuracy, it was necessary, taken its
instead of the word quantity to make use of the less perspicuous pdntof* m
term value. For the word quantity will not properly include and amy
the circumstances either of certainty or proximity : circum- ppoximi y *
stances which, in estimating the value of a lot of pain or plea-
sure, must always be taken into the account l . Now, on the one
hand, a lot of punishment is a lot of pain ; on the other hand,
the profit of an offence is a lot of pleasure, or what is equivalent
to it. But the profit of the offence 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 offence, 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 prox-
imity. 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 2 .

XVII. Yet farther. To make sure of giving the value of the Also, into
punishment the superiority over that of the offence, it may be of the
necessary, in some cases, to take into the account the profit not and profit of
only of the individual offence to which the punishment is to be the mischief
annexed, but also of such other offences of the same sort as the other roflt f
offender is likely to have already committed without detection, the same f
This random mode of calculation, severe as it is, it will be im- habltt
possible 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.

1 See ch. iv. [Value].

* It is for this reason, for example, that simple compensation is never
looked upon as sufficient punishment for theft or robbery.

184 Of the Proportion between [CHAP.

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.
Rule y. XVIII. Rule 7. These things being considered, the three

Stainty following rules may be laid down by way of supplement and

made up in explanation to Rule I.

magnitude. ,p eno fo[ e tfo va i ue O f ^ e punishment to outweigh that of the

profit of the offence, it must be increased, in point of magnitude,

in proportion as it falls short in point of certainty.

Rule s. XIX. Rule 8. Punishment must be further increased in point

o?wximfty.f ma 9 n itude, in proportion as it falls short in point of proximity.

Rule 9. XX. Rule 9. Where the act is conclusively indicative of a

indicative of habit, such an increase must be given to the punishment as may

punish as enable it to outweigh the profit not only of the individual offence,

f su h th er tik e offences as are likely to have been committed
with impunity by the same offender.

The remain- XXI. There may be a few other circumstances or considera-

oness esare tions which may influence, in some small degree, the demand

importance. ^ 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.

Rule 10. XXII. Rule 10. When a punishment, which in point of

For the sake _ . . 7 . . r . _ ...

or quality, quality is particularly well calculated to answer its intention,

increase m ..<,-, . .. .,

quantity, 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.
Rule 11. XXIII. Rule II. In particular, this may sometimes be the case.

Particularly ,,, i * s * -L 7

for a moral where the punishment proposed is of such a nature as to be par-
ticularly well calculated to answer the purpose of a moral lesson l .

A p ? n i s t ment * A punishment may be said to be calculated to answer the purpose of a

SFmorai leswn* moral lesson, when,by reason of the ignominy it stamps upon the offence, it

what. i 8 calculated to inspire the public with sentiments of aversion towards those

pernicious habits and dispositions with which the offence appears to be

connected ; and thereby to inculcate the opposite beneficial habits and

dispositions.

xiv.] Punishments and Offences. 185

XXIV. Rule 12. The tendency of the above considerations is
to dictate an augmentation in the punishment : the following circum-
rulc operates in the way of diminution. There are certain cases which may
(it has been seen l ) in which, by the influence of accidental cir- punishment
cumstances, punishment may be rendered unprofitable in

whole : in the same cases it may chance to be rendered unpro-
fitable as to a part only. Accordingly,

In adjusting the quantum of punishment, the cir cumstances ,
by which all punishment may be rendered unprofitable, ought to
be attended to.

XXV. Rule 13. It is to be observed, that the more various Rule is.
and minute any set of provisions are, the greater the chance i
that any given article in them will not be borne in mind : with-

out which, no benefit can ensue from it. Distinctions, which are neglected. e

more complex than what the conceptions of those whose conduct

it is designed to influence can take in, will even be worse than

useless. The whole system will present a confused appearance :

and thus the effect, not only of the proportions established by

the articles in question, but of whatever is connected with them,

will be destroyed 2 . To draw a precise line of direction in such

case seems impossible. However, by way of memento, it may

be of some use to subjoin the following rule.

Among provisions designed to perfect the proportion between
punishments and offences, if any occur, which, by their own par-
ticular good effects, would not make up for the harm they would
do by adding to the intricacy of the Code, they should be omitted 3 .

It is this, for example, if any thing, that must justify the application of Examie.-
so severe a punishment as the infamy of a public exhibition, hereinafter
proposed, for him who lifts up his hand against a woman, or against his
father. See B. I. tit. [Simp, corporal injuries].

It is partly on this principle, I suppose, that military legislators have Example.
justified to themselves the inflicting death on the soldier who lifts up his }a W htary
hand against his superior officer.

1 See ch. xiii. [Cases unmeet], 4.

* See B. II. tit. [Purposes], Append, tit. [Composition].

8 Notwithstanding this rule, my fear is, that in the ensuing model, I Proportionality
may be thought to have carried my endeavours at proportionality too far. S^^S^t*
Hitherto scarce any attention has been paid to it. Montesquieu seems to work-why.
have been almost the first who has had the least idea of any such thing.
In such a matter, therefore, excess seemed more eligible than defect. The

1 86 Of the Proportion between [CHAP.

Auxiliary XXVI. It may be remembered, that the political sanction,
force or tne . \ . * .

physical, being that to which the sort of punishment belongs, which in

religious this chapter is all along in view, is but one of four sanctions,

sanction, not ,.,,,-, ., ,., i i

here allowed 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 1 ) the
force of those other powers is never determinate enough to be
depended upon. It can never be reduced, like political punish-
ment, 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.

Recapituia- XXVII. It may be of use, in this place, to recapitulate tho
several circumstances, which, in establishing the proportion be-
twixt punishments and offences, are to be attended to. These
seem to be as follows :
I. On the part of the offence :

1. The profit of the offence ;

2. The mischief of the offence ;

3. The profit and mischief of other greater or lesser offences,

of different sorts, which theoffender may have to choose
out of ;

4. The profit and mischief of other offences, of the same

sort, which the same offender may probably have been
guilty of already.

difficulty is to invent : that done, if any thing seems superfluous, it is easy
to retrench.

1 See B. I. tit. [Punishments].

xiv.] Punishments and Offences. 187

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 punish-

ment, 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 parti-

cular 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 con-

tinuance :

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 The nicety
look upon the nicety employed in the adjustment of such rules, observed
as so much labour lost : for gross ignorance, they will say, never from 'the* 1
troubles itself about laws, and passion does not calculate. But
the evil of ignorance admits of cure l : and as to the proposi-
tion 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

1 See Append, tit. [Promulgation!,

1 88 Proportion between Punishments and Offences.

importance) who is there that docs not calculate ? Men calcu-
late, some with less exactness, indeed, some with more : but all
men calculate. I would not say, that even a madman does not
calculate 1 . Passion calculates, more or less, in every man : in
different men, according to the warmth or coolness of their dis-
positions : 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 calcu-
lation, from the excesses of which, by reason of its strength,
constancy, and universality, society has most to apprehend 2 :
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.

1 There are few madmen but what are observed to be afraid of the strait
waistcoat.
* See ch. xii. [Consequences], xxxiii.

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 Properties
observed in adjusting the proportion between the punishment governed by
and the offence. The properties to be given to a lot of punish- proportlon -
ment, 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 Property i.
quantity of punishment must not be less, in any case, than what Variabl lty *
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 off ence, 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 offence
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 offence 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 :

I 9 Of the Properties to be given to [CHAP.

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 offence. This property might,
perhaps, be termed, in a single word, variability.

M- 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 hone 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 circum-
stances 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 punish-
ment, 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 un-
equability may be regarded as properties belonging to the
punishment itself.

xv.] a Lot of Punishment. 191

IV. An example of a mode of punishment which is apt to be Punish-
unequable, is that of banishment, when the locus a quo (or place are apt to
the party is banished from) is some determinate place appointed in this
by the law, which perhaps the offender cares not whether he respec '
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 1 .

V. The third rule of proportion was, that where two offences Property 8.
come in competition, the punishment for the greater offence surabinty to
must be sufficient to induce a man to prefer the less. Now, to punish*

be sufficient for this purpose, it must be evidently and uniformly ments *
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 offences ; that is, in effect, of all mankind. In
other words, the two punishments must be perfectly commen-
surable. Hence arises a third property, which may be termed
commensurdbility : to wit, with reference to other punishments 2 .

VI. But punishments of different kinds are in very few in- HOW two
stances uniformly greater one than another ; especially when punishment
the lowest degrees of that which is ordinarily the greater, are Xcred

1 By the English law, there are several offences which are punished by a
total forfeiture of moveables, not extending to immoveables. This is the
case with suicide, and with certain species of theft and homicide. In some
cases, this is the principal punishment: in others, oven the only one. The
consequence is, that if a man's fortune happens to consist in moveables, he
is ruined ; if in immoveables, he suffers nothing.

a See View of the Hard- Labour Bill, Lond. 1778, p. 100.

For the idea of this property, I must acknowledge myself indebted to an
anonymous letter in the St. James's Chronicle, of the 27th of September,
1 777 ; the author of which is totally unknown to me. If any one should
be disposed to think lightly of the instruction, on account of the channel
by which it was first communicated, let him toll me where I can find an
idea more ingenious or original.

Of the Properties to be given to [CHAP.

commen- com P arc d wi *h the highest degrees of that which is ordinarily
surabie. 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. I . 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.
character?' VII. Again : Punishment cannot act any farther than in as
isticalness. f ar as fa e ^ QQt o j ft, and of its connection with the offence, 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 remem-
bered it must have been learnt. But of all punishments that
canbe imagined, there are none of which the connection with the
offence 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 offence : 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
offence, the punishment is said to bear an analogy to, or to be
characteristic of, the offence l . 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.
The mode of VIII. It is obvious, that the effect of this contrivance will be

punishment '

the most the greater, as the analogy is the closer. The analogy will be

eminently b ' . , /

character, the closer, the more material 2 that circumstance is, which is in

1 See Montesq. Esp. des Loix, L. xii. ch. iv. He seems to have the
property of characteristicalness in view; but that the idea he had of it was
very indistinct, appears from the extravagant advantages he attributes to it.

* See ch. vii. [Actions], iii.

xv.] a Lot of Punishment. 193

common. Now the most material circumstance that can belong istio, i* that
to an offence and a punishment in common, is the hurt or damage turn,
which they produce. The closest analogy, therefore, that can
subsist between an offence and the punishment annexed to it, is
that which subsists bet ween 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 1 .
Accordingly, the mode of punishment, which of all others bears
the closest analogy to the offence, is that which in the proper
and exact sense of the word is termed retaliation. Eetaliation,
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 Property 5.
other words, the apparent punishment) that really acts upon the piarity.
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 2 . It is the real
punishment that does all the mischief 3 . Now the ordinary and
obvious way of increasing the magnitude of the apparent punish-
ment, 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 addi-
tional real punishment is needless. As to these less expensive
means, they consist, I. In the choice of a particular mode of
punishment, a punishment of a particular quality, indepen-
dent of the quantity 4 . 2. In a particular set of solemnities
distinct from the punishment itself, and accompanying the
execution of it 5 .

1 Besides this, there are a variety of other ways in which the punishment
may bear an analogy to the offence. This will be seen by looking over the^
table of punishments.

2 See ch. xiii. [Cases unmeet], 1,2. note. 3 Ib. 4. par. iii.
4 See B. I. tit, [Punishments]. * See B. II. tit. [Execution].

BENTHAM Q

194 Qf the Properties to be ffive?i to [CHAP.

The most X. A mode of punishment, according as the appearance of it
way of bears a greater proportion to the reality, may be said to be tho

rendering a 7 XT i_ .* ^ t xi_

punishment more exemplary. Now as to what concerns the choice of the

by meansof punishment itself, there is not any means by which a given
ana gy * quantity of punishment can be rendered more exemplary, than
by choosing it of such a sort as shall bear an analogy to the
offence. Hence another reason for rendering the punishment
analogous to, or in other words characteristic of, the offence.
Property 6. 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 pro-
posed. 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. Fru-
gality, therefore, is a sixth property to be wished for in a mode
of punishment.

Frugality XII. The perfection of frugality, in a mode of punishment, is
perfection to where not only no superfluous pain is produced on the part of
punishment, 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 offencehas 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 con-
sist in the subtraction of such a species of possession as is trans-
ferable from one party to another. The pleasure, indeed, pro-
duced by such an operation, is not in general equal to the pain 2 :
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.
1 Ch. xiii. [Cases unmeet], par. iii. * Ib. note.

xv.] a Lot of Punishment. 195

XIII. The properties of exemplarity and frugality seem to Exemplarity
pursue the same immediate end, though by different courses. frugality, in
Both are occupied in diminishing the ratio of the real suffering differ and
to the apparent : but exemplarity tends to increase the apparent ; asree "
frugality to reduce the real.

XIV. Thus much concerning the properties to be given toother
punishments in general, to whatsoever offences they are to be inferior
applied. Those which follow are of less importance, either as imp r
referring only to certain offences 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 1 , may give rise to so
many distinct properties, according as any particular mode of
punishment appears to be more particularly adapted to the com-
passing 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 Property 7.
mode of punishment, is that of subserviency to reformation, or viency to

, ' . , ^ . , . , , reformation.

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 offence which
was the cause of it : and that with respect to all offences alike,
But there are certain punishments which, with regard to certain
offences, have a particular tendency to produce that effect by
reason of their quality : and where this is the case, the punish-
ments in question, as applied to the offences 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 invali-
date the force of that motive.

XVI. Thus, in offences originating from the motive of ill- -applied to

1 See oh. xiii. [Cases unmeet], par. ii. note.
02

196 Of the Properties to le given to [CHAP.

offences will *, that punishment has the strongest reforming tendency,
inlii^wiiF* which is best calculated to weaken the force of the irascible
affections. And more particularly, in that sort of offence which
consists in an obstinate refusal, on the part of the offender, to do
something which is lawfully required of him 2 , 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.

-tooffences XVII. Thus, also, in offences which owe their birth to the

inmdoience joint influence of indolence and pecuniary interest, that punish-

pecuniary merit seems to possess the strongest reforming tendency, which

m eres . . g ^^ ca j cu i a ted to weaken the force of the former of those

dispositions. And more particularly, in the cases of theft, em-

bezzlement, and every species of defraudment, the mode of

punishment best adapted to this purpose seems, in most cases,

to be that of penal labour.

Property 8. XVIII. An eighth property to be given to a lot of punish-
with respect ment in certain cases, is that of efficacy with respect to disable-
ment. ment, 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 offence 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.

is most 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

punishment.

1 See ch. x. [Motives].

2 Seo B. I. tit. [Offences against Justice].

xv.] a Lot of Punishment, 197

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 sove-
reignty, and leaders of the factions in civil wars : though, when
applied to offences 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 1 .

XX. In ordinary cases the purpose maybe sufficiently answered other
by one or other of the various kinds of confinement and banish-

ment : of which, imprisonment is the most strict and efficacious, to be found
For when an offence is so circumstanced that it cannot be com-
mitted but in a certain place, as is the case, for the most part,
with offences 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 offences 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 offences 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 compensa- Property o.
lion. This property of punishment, if it be vindictive compen- viency to
sation that is in view, will, with little variation, be in proportion tion.
to the quantity: if lucrative, it is the peculiar and characteristic
property of pecuniary punishment.

1 See B. I. tit. [Punishments].

198 Of the Properties to be given to [CHAP.

Property 10. 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 un-
popularity : 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 popiOarity may
be regarded as a kind of secondary quality, depending upon that
of characteristicalness 1 . 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 per-
ceive any violent aversion entertained by the body of thepcople.
Mischiefs XXIII. The effects of unpopularity in a mode of punishment
from the arc analogous to those of unfrugality. The unnecessary pain

which denominates a punishment unfrugal, is most apt to be
t that which is produced on the part of the offender. A por-
peop?e,ami tion of superfluous pain is in like manner produced when the
life law? 8 m 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 execu-
tion : when they are dissatisfied, they will naturally withhold

Characteristi- * The property of characteristicalness, therefore, is useful in a mode of
a a punishmentr punishment in three different ways : i . It renders a mode of punishment,
a mm r Sr*' t ^^ orc infliction, more easy to be borne in mind : 2. It enables it, especially
3! popn ry ! after infliction, to make the stronger impression, when it is there ; that is,

renders it the more exemplary : 3. It tends to render it more acceptable to

the people, that is, it renders it the more popular.

xv.] a Lot of Punishment. 1 99

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 offence 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 1 .

XXIV. This property, it is to be observed, necessarily sup- This proper-
poses, on the part of the people^some prejudice or other, which a^nrejudk?
it is the business of the legislator to endeavour to correct. For legislator 6
if the aversion to the punishment in question were grounded

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 un-
reasonable dislike against an object which merits their approba-
tion. 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 pre-
judices and its caprices, which it is the business of the legislator
to look out for, to study, and to cure 2 .

XXV. The eleventh and last of all the properties that seem Property 11.
to be requisite in a lot of punishment, is that of remissibility 3 .

The general presumption is, that when punishment is applied,
punishment is needful : that it ought to be applied, and there-
fore 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

1 Roc ch. xiii. [Cases unmeet], v.

8 See ch. xiii. [Cases unmeet], iv. par. iv.

8 Sco View of the Hard Labour Bill, p. 109.

200 Of the Properties to be given to [CHAP.

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 offence. At the time of the sentence passed he
appeared guilty : but since then, accident has brought his inno-
cence 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 per-
manent 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 canno t
be put into the same condition,yct 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 effec-
tually 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 commence-
ment of the punishment, it may seem expedient to remit a part
of it. But this it can scarcely be, if the proportion of the pun-
ishment is, in other respects, what it ought to be. The purpose
of example is the more important object, in comparison of that
of reformation l . 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
1 Sec ch, xiii. [Cases unmeet], ii. note.

xv.] a Lot of Punishment.

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 ne-
cessary 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 To obtain all
punishment, it will appear evidently, that there is not any one properties,
of them that possesses all the above properties in perfection, ments must
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 brine together, and exhibit in The fore-

*

one view, the eleven properties above established. They are as properties

f AX recapitula-

tollows : ted.

Two of them are concerned in establishing a proper propor-
tion between a single offence and its punishment ; viz.

1. Variability.

2. Equability.

Of the Properties to le given to [CHAP,

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 punish-
ment ; 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 pro-
duce ; viz.

10. Popularity.

The remaining property tends to palliate a mischief,
which all punishment, as such, is liable accidentally to pro-
duce ; viz.

11. Remissibility.

The properties of commensurability, Characteristicalness, ex-
emplarity, subserviency to reformation, and efficacy in disabling,
are more particularly calculated to augment the projlt which is
to be made by punishment: frugality, subserviency to compen-
sation, popularity, and remissibility, to diminish the expense :
variability and equability are alike subservient to both those
purposes.

Connection XXVIII. We now come to take a general survey of the system
the ensuing of q/fences : that is, of such acts to which, on account of the
c ap er, mischievous consequences they have a natural tendency to pro-

xv.] a Lot of Punishment. 203

ducc, and in the view of putting a stop to those consequences, it
may be proper to annex a certain artificial consequence, con-
sisting of punishment, to be inflicted on the authors of such acts,
according to the principles just established.

CHAPTER XVI.

DIVISION OF OFFENCES.

I. Classes of Offences.

Distinction * IT is necessary, at the outset, to make a distinction between
what are such acts as are or may be, and such as ought to be offences.

sued h ? d the r f * ^^* s chapter is an attempt to put our ideas of offences into an exact
fowingMivi- method. The particular uses of method are various : but the general one
sions. j Sj O ena bi c mC n to understand the things that are the subjects of it. To

understand a thing, is to be acquainted with its qualities or properties. Of
these properties, some are common to it with other things ; the rest, pecu-
liar. But the qualities which are peculiar to any one sort of thing are few
indeed, in comparison with those which are common to it with other things.
To make it known in respect of its difference, would therefore be doing
little, unless it were made known also by its genus. To understand it per-
fectly, a man must therefore be informed of the points in which it agrees,
as well as of those in which it disagrees, with all other things. When a
number of objects,composing a logical whole, are to be considered together,
all of these possessing with respect to one another a certain congruency or
agreement denoted by a certain name, there is but one way of giving a
perfect knowledge of their nature ; and that is, by distributing them into a
system of parcels, each of them a part, either of some other parcel, or, at
any rate, of the common whole. This can only be done in the way of Iripar-
tition t dividing each superior branch into two, and but two, immediately
subordinate ones ; beginning with the logical whole, dividing that into two
parts, then each of those parts into two others ; and so on. These first-
distinguished parts agree in respect of those proper ties which belong to the
whole- : they differ in respect of those properties which are peculiar to each.
To divide the whole into more than two parcels at once, for example into
three, would not answer the purpose ; for, in fact, it is but two objects that
the mind can compare together exactly at the same time. Thus then, let
us endeavour to deal with offences ; or rather, strictly speaking, witli acts
which possess such properties as seem to indicate them fit to be constituted
offences. The task is arduous ; and, as yet at least, perhaps for ever, above
our force. There is no speaking of objects but by their names : but tho
business of giving them names has always been prior to the true and perfect
knowledge of their natures. Objects the most dissimilar have been spoken
of and treated as if their properties were the same. Objects the most similar
have been spoken of and treated as if they had scarce anything in common.
Whatever discoveries may be made concerning them, how different soever
theircongruenciesand disagreements maybe found to be from those which
are indicated by their names, it is not without the utmost difficulty that
any means can be found out of expressing those discoveries by a conform-

Division of Offences. 305

Any act may be an offence, which they whom the community offences and
are in the habit of obeying shall be pleased to make one : that to be.
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 Noactought
should be made an offence, which is not liable, in some way oroffence n but.
other, to be detrimental to the community. For in the case of detrimental,
such an act, all punishment is groundless l . community

III. But if the whole assemblage of any number of indivi- TO be so, it
dualsbeconsidered as constituting an imaginary compound body,

a community or political state ; any act that is detrimental

any one or more of those members is, as to so much of its effects, members '

detrimental to the state.

IV. An act cannot be detrimental to a state, but by being These may
detrimental to some one or more of the individuals that com-

pose it. But these individuals may either be assignable 2 or
unassignable.

V. When there is any assignable individual to whom
offence is detrimental, that person may either be a person

than the offender, or the offender himself. 5tS2 f ' *

VI. Offences that are detrimental, in the first instance, to class i.
assignable persons other than the offender, may be termed by^ 1 ^.
one common name, o/fences against individuals. And of these

may be composed the ist class of offences. To contrast them

able set of names. Change the import of the old names, and you are in
perpetual danger of being misunderstood : introduce an entire new set of
names, and you are sure not to be understood at all. Complete success,
then, is, as yet at least, unattainable. But an attempt, though imperfect,
may have its use : and, at the worst, it may accelerate the arrival of that
perfect system, the possession of which will be the happiness of some ma-
turer age. Gross ignorance descries no difficulties ; imperfect knowledge
finds them out, and struggles with them : it must be perfect knowledge
that overcomes them.

1 See ch. xiii. [Cases unmeet], ii. i.

8 That is, either by name, or at least by description, in such manner as persons assign.
to be sufficiently distinguished from all others ; for instance, by the circum- jWo, how.
stance of being the owner or occupier of such and such goods. See B. I.
tit. [Personation], supra, ch. xii. [Consequences], xv.

Division, of Offences.

[CHAP.

SemKpubii
offences.

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 srdclass, they may bestyled
private extra-regarding offences.

^^' W 1611 ^ appears, in general, that there are persons to
whom the act in question may be detrimental, but such persons
cannotbeindividuallyassigned,thecircle 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 com-
munity. 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. Offences, then, against a class or neighbourhood,
may, together, constitute the 2nd class of offences 1 . To contrast
them with private offences on the one hand, and public on the
other, they may also be styled semi-public offences.
Class 3. VIII. Offences, which in the first instance are detrimental to

pen-regard-

ing offences, 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,

Limits between * With regard to offences against a class or neighbourhood, it is evident,
that the fewer the individuals are, of which such class is composed, and the
, narrower that neighbourhood is, the more likely are the persons, to whom

peaking, un- the offence is detrimental, to become assignable ; insomuch that, in some
bie. nguish " cases, it may be difficult to determine concerning a given offence, whether
it be an offence against individuals, or against a class or neighbourhood. It
is evident also, that the larger the class or neighbourhood is, the more it
approaches to a coincidence with the great body of the state. The three
classes, therefore, are liable to a certain degree, to run into one another,
and be confounded. But this is no more than what is the case, more or
less, with all those ideal compartments under which men are wont to dis-
tribute objects for the convenience of discourse.

xvi.] Division Of Offences. 207

and fourth classes, all which are of a transitive nature, they
might be styled intransitive l offences ; but still better, self-
regarding.

IX. The fourth class may be composed of such acts as ought Class 4,
to be made offences, on account of the distant mischief which Offences,
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 Class 5.

v A ^ j. -TIT -. Multiform,

as, according to the circumstances m which they are committed, offences, viz.
and more particularly according to the purposes to which they byfaisekood

r j i / 4. xi- ^ - i ; 3. Offences

are applied, may be detrimental in any one of the ways in which against
the act of one man can be detrimental to another. These may rus '
be termed multiform, or heterogeneous offences 2 . Offences that

1 See ch. vii. [Actions], xiii.

2 I. Offences by falsehood: 2. Offences against trust. See also par. xx. The imperfec-
to xxx. and par. Ixvi. Maturer views have suggested the feasibility, and J^ean ai1 "
the means, of ridding the system of this anomalous excrescence. Instead ^[J^Vie
of considering these as so many divisions of offences, divided into genera, arrdllij:eme
correspondent and collateral to the several genera distinguished by other
appellations, they may be considered as so many specific differences, re-
spectively applicable to those genera. Thus, in the case of a simple personal

injury, in the operation of which a plan of falsehood has been employed: it
seems more simple and more natural, to consider the offence thus committed
as a particular species or modification of the genus of offence termed a simple
personal injury, than to consider the simple personal injury, when effected
by such means, as a modilication of the division of offences entitled Offences
through falsehood. By this means the circumstances of the intervention of
falsehood as an instrument, and of the existence of a particular obligation
of the nature of a trust, will be reduced to a par with various other classes
of circumstances capable of affording grounds of modification, commonly of
aggravation or extenuation, to various genera of offences : instance, Pre-
meditation, and conspiracy, on the one hand ; Provocation received, and
intoxication, on the other. This class will appear, but too plainly, as a
kind of botch in comparison of the rest. But such is the fate of science,
and more particularly of the moral branch ; the distribution of things must
in a great measure be dependent on their names : arrangement, the work
of mature reflection, must be ruled by nomenclature, the work of popular
caprice.

In the book of the laws, offences must therefore be treated of as much as
possible under their accustomed names. Generical term's, which are in
continual use, and which express ideas for which there are no other terms
in use, cannot safely be discarded. When any such occur, which cannot

208

Division of Offences.

[CHAP.

Divisions of
Class 1.
(i) Offences
against
person ; (a)

(3) Reputa-
tion ;( 4 )
Condition ;
(5) Person
and pro-
perty; (6)
rerson and
reputation.

are in this case may be reduced to two great heads : I. Offences
by falsehood: and 2. Offences against trust.

2. Divisions and sub-divisions.

XL Let us see by what method these classes may be farther
sub- divided. First, then, with regard to offences against indi-
viduals.

In the present period of existence, a man's being and well-
being, his happiness and his security ; in a word, his pleasures
and his immunity from pains, arc 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 : I. absolutely, to wit,

be brought to quadrate with such a plan of classification as appears to be
most convenient upon the whole, what then is to be done? There seems
to be but one thing ; which is, to retain them, and annex them to the
regular part of the system in the form of an appendix. Though they can-
not, when entire, be made to rank under any of the classes established in
the rest of the system, the divisions to which they give title may be broken
down into lesser divisions, which may not be alike intractable. By this
means, how discordant soever with the rest of the system they may appear
to be at first sight, on a closer inspection they may be found conformable.
This must inevitably be the case with the names of ofTences, which are
so various and universal in their nature, as to be capable, each of them,
of doing whatever mischief can be done by any other kind or kinds of
ofTences whatsoever. Offences of this description may well bo called
anomalous.

rhich could Such offences, it is plain, cannot but show themselves equally intractable
1 under every kind of system. Upon whatever principle the system be con-
structed, they cannot, any of them, with any degree of propriety, bo con-
fined to any one division. If, therefore, they constitute a blemish in the
present system, it is such a blemish as could not be avoided but at the ex-
pense of a greater. The class they are here thrown into will traverse, in
its subordinate ramifications, the other classes and divisions of the present
system : true, but so would they of any other. An irregularity, and that
but a superficial one, is a less evil than continual error and contradiction.
But even this slight deviation, which the fashion of language seemed to
render unavoidable at the outset, we shall soon find occasion to correct as
we advance. For though the first great parcels into which the offences of
this class are divided are not referable, any of them, to any of the former
classes, yet the subsequent lesser subdivisions are.

Irregularity
of this class.

xvi.] Division of Offences. 209

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 1 which the before mentioned
exterior objects may happen to bear, in the way of causality
(see ch. vii. Actions, par. 24) 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 other wise have of deriving happiness or security
fromanobject 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 2 . Now, then, take any man,

1 See ch. vii. [Actions], iii. and xxiv.

If, by reason of the word rdation,this part of the division should appear in what manner
obscure, the unknown term may be got rid of in the following manner. p^Sepend
Our ideas are derived, all of them, from the senses ; pleasurable and painful upon the reu-
ones, therefore, among the rest : consequently, from the operation of sensible "?? 5
objects upon our senses. A man's happiness, then, may be said to depend l
more or less upon the relation he bears to any sensible object, when such
object is in a way that stands a chance, greater or less, of producing to
him, or averting from him, pain or pleasure. Now this, if at all, it must
do in one or other of two ways ; i. In an active way, properly so called ;
viz. by motion : or, 2. In a passive or quiescent way, by being moved to, or
acted upon: and in either case, either, i. in an immediate way, by acting
upon, or being acted on by, the organs of sense, without the intervention
of any other external object : or, 2. in a more or less remote way, by acting
upon, or being acted on by, some other external object, which (with the
intervention of a greater or less number of such objects, and at the end of
more or less considerable intervals of time) will come at length to act upon,
or bo acted upon by, those organs. And this is equally true, whether the
external objects in question be things or persons. It is also equally true
of pains and pleasures of the mind, as of those of the body : all the dif-
ference is, that in the production of these, the pleasure or pain may result
immediately from the perception which it accompanies : in the production
of those of the mind, it cannot result from the action of an object of sense,
any otherwise than by association / to wit, by means of some connection
which the perception has contracted with certain prior ones, lodged already
in the memory l .

8 See ch. x. [Motives],

i See cli. v. [.Pleasures and Pains. 1 , xv, xxxi, Ch. x. [Motives], x\.\ix. note.
BENTHAM p

210 Division of Offences. [CHAP.

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 con-
nection more particular. In the latter case, such a connection
may be spoken of as constituting, in your favour, a kind of ficti-
tious 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 happi-
ness 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 ficti-
tious object of propertyis 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

xv i.] Division of Offences. 2,11

separate divisions ; and such compound divisions may be sub-
joined to the preceding simple ones. Theseveral divisions (simple
and compound together) which are hereinafter established, stand
as follows : I. Offences against person. 2. Offences against
reputation. 3. Offences against property. 4. Offences against
condition. 5. Offences against person and property together.
6. Offences against person and reputation together l .

XII. Next with regard to semi-public offences. Pain, con- Divisions of
sidered with reference to the time of the act from which it is ^
liable to issue, must, it is evident, be either present, past,
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 3 . 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 3 . 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 4 . 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, a/fences
through calamity. If the danger be intentional, insomuch that
it might be produced, and might convert itself into actual mis-
chief, 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

1 Subsequent consideration has here suggested several alterations. The
necessity of adding to property, power,in the character of a distinguishable
as well as valuable object or subject-matter of possession, has presented
itself to view : and in regard to the fictitious entity here termed condition
(for shortness instead of saying condition in life), it has been observed to
be a sort of composite object, compounded of property, reputation, power,
and right to services. For this composite object the more proper place was
therefore at the tail of the several simple ones. Note by the Editor, July,
1822:.

a Supra, iv. note. 3 See ch. xii. [Consequences]*

4 See ch. viii. [Intentional! ty].

Division of Offences. [CHAP.

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.

Sub- XIII. With regard to any farther sub-divisions, offences

offences through calamity will depend upon the nature of the several

caiamfty, calamities to which man, and the several things that are of use

ismisse . J. Q kj m ^ stan( j ex p ose d. These will be considered in another

place l .

2. Offences XIV. Semi-public offences of mere delinquency will follow
delinquency, the method of division applied to offences against individuals.

how t*""- rr fo

correspond It will easily be conceived, that whatever pain or inconvenience
divisions of any given individual may be made to suffer, to the danger of

private \ e . . . J ' .

offences. that pain or inconvenience may any number of individuals, as-
signable or not assignable, be exposed. Now there are four
points or articles, as we have seen, in respect to which an indi-
vidual 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.

Divisions of XV. We come next to self-regarding offences ; or, more pro-
coincide perly, to acts productive in the first instance of no other than
withthoseof r ,/ ,. r . ,. , ,. , .- . . , ., ,

Class i. a self -regarding mischief : acts which, if in any instance it be

1 See B. I. tit. [Semi-public offences]. In the'mean time that of pesti-
lence may serve as an example. A man, without any intention of giving
birth to such a calamity, may expose a neighbourhood to the danger of it,
by breaking quarantine or violating any of those other preventive regula-
tions which governments, at certain conjunctures, may find it expedie/itto
have recourse to, for the purpose of guarding against such danger.

xvi.] Division of Offences. 213

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 l 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 ground-
work 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 divi- Divisions of
sions 2 . I. Offences against external security. 2. Offences ss4 '
against justice. 3. Offences against the preventive branch of the

1 See ch. xiii. [Cases unmeet], iv.

2 In this part of the analysis, I have found it necessary to deviate in Exhaustive
some degree from the rigid rules of the exhaustive method I set out with. j

By me, or by some one else, this method may, perhaps, be more strictly
pursued at some maturer period of the science. At present, the benefit
that might result from the unrelaxed observance of it, seemed so precarious,
that I could not help doubting whether it would pay for the delay and
trouble. Doubtless such a method is eminently instructive : but the fatigue
of following it out is so great, not only to the author, but probably also to
the reader, that if carried to its utmost length at the first attempt, it might
perhaps do more disservice in the way of disgust, than service in the way
of information. For knowledge, like physic, how salutary soever in itself,
becomes no longer of any use, when made too unpalatable to be swallowed.
Mean time, it cannot but be a mortifying circumstance to a writer, who is
sensible of the importance of his subject, and anxious to do it justice, to
find himself obliged to exhibit what he perceives to be faulty, with any
view, how indistinct soever, of something more perfect before his eyes. If
there be any thing new and original in this work, it is to the exhaustive
method so often aimed at that I am indebted for it. It will, therefore, be
no great wonder if I should not be able to quit it without reluctance. On
the other hand, the marks of stiffness which will doubtless be perceived in
a multitude of places, are chiefly owing to a solicitous, and not perfectly
successful, pursuit of this same method. New instruments are seldom
handled at first with perfect ease.

214 Division of Offences. [CHAP,

police. 4. Offences against the public/orce. 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, n. 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.

Connection XVII. Mischief by which the interest of the public as above
of the nine J .

first defined may be affected, must, if produced at all, be produced

divisionsone . , , J . /i ^ n i *

with either by means of an influence exerted on the operations of

government, or by other means, without the exertion of such in-
fluence 1 . 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 theinstrumentality of persons,may accord-
ingly 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 on 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

1 The idea of government, it may be observed, is introduced here without
any preparation. The fact of its being established, I assume as notorious,
and the necessity of it as alike obvious and incontestable. Observations
indicating that necessity, if any such should be thought worth looking at in
this view, may be found by turning to a passage in a former chapter, where
they were incidentally adduced for the purpose of illustration. See ch. xii.
[Consequences], xvii.

xvi.] Division of Offences. 215

occupy a title by itself : it may accordingly be referred to the
miscellaneous head of offences against the national interest in
general l . 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 instru-
mentality 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 govern-
ment. This it may occasion either, I. 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 2 . Now

1 See infra, liv. note. Even this head, ample as it is, and vague as it
may seem to be, will not, when examined by the principle of utility, serve,
any more than another, to secrete any offence which has no title to be
placed there. To show the pain or loss of pleasure which is likely to ensue,
is a problem, which before a legislator can justify himself in adding the act
to the catalogue of offences, he may in this case, as in every other, be called
upon to solve.

2 For examples, see infra, liv. note. This branch of the business of
government, a sort of work of supererogation, as it may be called, in the
calendar of political duty, is comparatively but of recent date. It is not
for this that the untutored many could have originally submitted themselves
to the dominion of the few. It was the dread of evil, not the hope of good,
that first cemented societies together. Necessaries como always before
luxuries. The state of language marks the progress of ideas. Time out of
mind the military department has had a name : so has that of justice: the
power which occupies itself in pro venting mischief, not till lately, and that
but a loose one, the police : for the power which takes for its object the

21 6 Division of Offences. [ C1IAP

mischief, we have seen, must come either from external adver-
saries, f rominternaladversaries, or from calamities. With regard
to mischief from external adversaries, there requires no further
division. As to mischief from internal adversaries, the expe-
dients employed for a verting 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 inconsequence
of the discovery of some such design : the former of these are
commonly referred to a branch which may be styled the 'preven-
tive branch of the police : the latter to that of justice 1 . Secondly,
As to the instruments which government, whether in the avert-
ing 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 mis-
chief from adversaries in general, but more particularly from
external adversaries 2 , may be distinguished from the rest under

introduction of positive good, no peculiar name, however inadequate, seoms
yet to have been devised.

1 The functions of justice, and those of the police, must be apt in many
points to run one into another : especially as the business would be very
badly managed if the same persons,whose more particular duty it is to act
as officers of the police, were not upon occasion to act in the capacity of
officers of justice. The ideas, however, of the two functions may still be
kept distinct : and I see not where the line of separation can be drawn,
unless it be as above.

As to the word police, though of Greek extraction, is seems to bo of
French growth : it is from France, at least, that it has been imported into
Great Britain, where it still retains its foreign garb : in Germany, if it did
not originate there, it has at least been naturalized. Taken all together,
the idea belonging to it seems to be too multifarious to be susceptible of
any single definition. Want of words obliged me to reduce the two branches
here specified into one. Who would have endured in this place to have
seen two such words as the phthano-paranomic or crime-preventing, and tho
phthano-symphoric or calamity-preventing, branches of the police ? the incon-
veniences of uniting the two branches under the same denomination, are,
however, the less, inasmuch as tho operations requisite to be performed for
the two purposes will in many cases be the same. Other functions, com-
monly referred to the head of police, may be referred either to the head of
that power which occupies itself in promoting in a positive way the increase
of the national felicity, or of that which employs itself in the management
of the public wealth. See infra, liv. note.

* It is from abroad that those pernicious enterprises are most apt to
originate, which come backed with a greater quantity of physical force
than the persons who are in a more particular sense the officers of justice
are wont to have at their command. Mischief the perpetration of which is
ensured by a force of such magnitude, may therefore be looked upon in

XYJ.] Division of Offences. 217

the collective appellation of the public military force, and, for con-
ciseness' sake, the military force. The rest may be characterised
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 popula-
tion, the greater may cceteris 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 com-
munity : the sum of which properties may be termed the national
wealth l : so that the greater the national wealth, the greater cceteris
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 : I. 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

general as the work of external adversaries. Accordingly, when the persons
by whom it is perpetrated are in such force as to bid defiance to the ordi-
nary efforts of j ustice, they loosen themselves from their original denomina-
tion in proportion as they increase in force, till at length they are looked
upon as being no longer members of the state, but as standing altogether
upon a footing with external adversaries. Give force enough to robbery,
and it swells into rebellion : give permanence enough to rebellion, and it
settles into hostility.

1 It must be confessed, that in common speech the distinction hero
established between the public wealth and the national wealth is but
indifferently settled : nor is this to be wondered at ; the ideas themselves,
though here necessary to be distinguished, being so frequently convertible.
But I am mistaken if the language will furnish any other two words that
would express the distinction better. Those in question will, I imagine,
be allowed to be thus far well chosen, that if they were rnado to change
their places, tho import given to them would not appear to bo quite so
proper as that which is giveii to them as they stand at present.

Division of Offences. [CHAP.

assemblage of the persons by whom the several political operations
above mentioned come to be performed, we set out with apply-
ing 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 im-
pede or misdirect the operations of the sovereign, as here de-
scribed, 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 o/ences 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 againstjustice,
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 de-
linquency 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 em-
ployed in guarding against mischiefs resulting from the delin-
quency of internal adversaries, by expedients that come to be
applied beforehand ; or of that which is employed in guarding

1 I should have been afraid to have said necessarily. In the United
Provinces, in the Helvetic, or even in the Germanic body, where is that
one assembly in which an absolute power over the whole resides ? where
was there in the Roman Commonwealth ? I would not undertake for
certain to find an answer to all these questions.

XVT.] Division of Offences. 319

against the mischiefs that might be occasioned by physical cala-
mities. By offences against the publicforce, such offences whereof
the tendency is to impede or misdirect the operations of that
power which is 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 delin-
quency of internal adversaries.

By offences against the increase of the national felicity, such
offences whereof the tendency is to impede or misapply the ope-
rations of those powers that are employed in the conducting of
various establishments, which are calculated tomake,in so many
different ways, a positive addition to the stock of public happi-
ness. By offences against the public wealth, such offences whereof
the tendency is to diminish the amount or misdirect the applica-
tionof the money, and other articles of wealth,which the govern-
ment 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 Connection
for religion ? This we shall see presently. For combating
various kinds of offences above enumerated, that is, for combating t
all the offences (those not excepted which we are now about con- gomg OIles '
sidering) 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

3 so Division of Offences. [CHAP.

engines is entrusted cannot always see, nor, where it is punish-
ment 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 thebelief 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 1 , for convenience of dis-
course, 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 what-
soever. 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 2 .

1 See par. xvii. with regard to justice.

2 It may be observed, that upon this occasion I consider religion in no
other light, than in respect of the influence it may have on the happiness
of the present life. As to the effects it may have in assuring us of and
preparing us for a better life to come, this is a matter which comes not
within the cognizance of the legislator. See tit. [Offences against religion].

I say offences against religion, the fictitious entity: not offences against
God, the real being. For, what sort of pain should the act of a feeble
mortal occasion to a being unsusceptible of pain? How should an offence
affect him? Should it be an offence against his person, his property, his
reputation, or his condition ?

It has commonly been the way to put offences against religion foremost.
The idea of precedence is naturally enough connected with that of reverence.
'Eft Atos dpxwi*f<T0a. But for expressing reverence, there are other methods
enough that are less equivocal. And in point of method and perspicuity,
it is evident, that with regard to offences against religion, neither the nature
of the mischief which it is their tendency to produce, nor the reason there
may be for punishing them, can be understood, but from the consideration
of the several mischiefs which result from the several other sorts of offences.

xvi.] Division of Offences. 221

XIX. If there be any acts which appear liable to affect the Connection

... < ,1 T_ v , of offences

state in any one or more of the above ways, by operating in against the
prejudice of the external security of the state, or of its internal L^erest in
security ; of the public force ; of the increase of the national the rest.
felicity; of the public wealth; of the national 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 them-
selves, 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 Sub-
offences. These, as has been already intimated, are either class T* f
offences by falsehood, or offences concerning trust. Under the Si vSo*^'
head of offences by falsehood, may be comprehended, I. Simple byfaJwhoKl.
falsehoods. 2. Forgery. 3. Personation. 4. Perjury 1 . 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 par- Offences by
ticulars, have this in common, that they consist in some abuse of what they
the faculty of discourse, or rather, as we shall see hereafter,

In a political view, it is only because those others are mischievous, that
offences against religion are so too.

1 This division of falsehoods, it is to be observed, is not regularly drawn
out : that being what the nature of the case will not here admit of. False-
hood may be infinitely diversified in other ways than these. In a particular
case, for instance, simple falsehood when uttered by writing, is distinguished
from the same falsehood when uttered by word of mouth ; and has had a
particular name given to it accordingly. I mean, where it strikes against
reputation ; in which case, the instrument it has been uttered by has been
called a libel. Now it is obvious, that in the same manner it might have
received a distinct name in all other cases where it is uttered by writing.
But there has not happened to be any thing in particular that has disposed
mankind in those cases to give it such a name. The case is, that among
the infinity of circumstances by which it might have been diversified, those
which constitute it a libel, happen to have engaged a peculiar share of
attention on the part of the institutors of language ; either in virtue of the
influence which these circumstances have on the tendency of the act, or in
virtue of any particular degree of force with which on any other account
they may have disposed it to strike upon the imagination.

233 Division, of Offence*. [CHAP.

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.
the U diff a r 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
byany of those circumstances, it maybe styled simple falsehood.
These circumstances are, I. The /or w in which the falsehood is
uttered. 2. The circumstance of its relating or not to the iden-
tity of the -person of him who utters it. 3. The solemnity of the
occasion on which it is uttered 2 . The particular application
of these distinctive characters may more commodiously be
reserved for another place 3 .

Sub- XXIII. We come now to the sub-divisions of offences by

offences by falsehood. These will bring us back into the regular track of
are deter- analysis, pursued, without deviation, through the four preceding

mined by 1

the divisions Classes.

preceding By whatever means a mischief is brought about, whether
c asses. 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 respectto 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 subor-
dinate to that which is composed of the whole number of mem-
bers 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

1 See B. I. tit. [Falsehoods].

3 There are two other circumstances still more material ; viz. i. The
parties whose interest is affected by the falsehood : 2. The point or article
in which that interest is affected. These circumstances, however, enter
not into the composition of the generical character. Their use is, as we
shall see, to characterize the several species of each genus. See B. I. tit.
[Falsehoods].

* Ibid.

xvi.] Division of Offences. 223

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 popula-
tion, 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 offences of

11 i ,1 T i. ji i ^i j. this class in

belong to this division, to run over the same ground that is some in-
occupied by those of the preceding classes. But some of them, Change their

-L n . A. j -U names; in

as we shall see, are apt, on various occasions, to drop or change others not.
the names which bring them under this division : this is chiefly
the case 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, consti-
tute 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 com-
pliance with the laws of language, than in consideration of the
nature of the things themselves, that falsehoods are made sepa-
rate 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, h

Division of Offences. [CHAP.

where there is any particular act which one party, in the exercise
of some power, or some right l , which is conferred on him, is

l Powers, though not a species of rights (for the two sorts of fictitious
compieT^Sefu entities, termed a power and a right, are altogether disparate) are yet so far
ni iv ion ! f h f re i nc l u( ld under rights, that wherever the word power may be employed, the
given o tiem. wor j f ^^ mav a j go ^ e cm p] O y e( i : The reason is, that wherever you may
speak of a person as having a power, you may also speak of him as having
a right to such power : but the converse of this proposition does not hold
good : there are cases in which, though you may speak of a man as having
a right, you cannot speak of him as having a power, or in any other way
make any mention of that word. On various occasions you have a right,
for instance, to the services of the magistrate : but if you are a private per-
son, you have no power over him : all the power is on his side. This being
the case, as the word right was employed, the word power might perhaps,
without any deficiency in the sense, have been omitted. On the present
occasion however, as in speaking of trusts this word is commonly made
more use of than the word right, it seemed most eligible, for the sake of
perspicuity, to insert them both.

It maybe expected that, since the word trust has been here expounded,
the words power and right, upon the meaning of which the exposition of
the word trust is made to depend, should be expounded also : and certain
it is, that no two words can stand more in need of it than these do. Such
exposition I accordingly set about to give, and indeed have actually drawn
up : but the details into which I found it necessary to enter for this pur-
pose, were of such length as to take up more room than could consistently
be allotted to them in this place. With respect to these words, therefore,
and a number of others, such as possession, title, and the like, which in point
of import are inseparably connected with them, instead of exhibiting the
exposition itself, I must content myself with giving a general idea of the
plan which I have pursued in framing it : and as to every thing else, I
must leave the import of them to rest upon whatever footing it may happen
to stand upon in the apprehension of each reader. Power and right, and
the whole tribe of fictitious entities of this stamp, are all of them, in the
sense which belongs to them in a book of jurisprudence, the results of some
manifestation or other of the legislator's will with respect to such or such
an act. Now every such manifestation is either a prohibition, a command,
or their respective negations; viz. a permission, and the declaration which
the legislator makes of his will when on any occasion he leaves an act un-
commanded. Now, to render the expression of the rule more concise, the
commanding of a positive act may be represented by the prohibition of the
negative act which is opposed to it. To know then how to expound a
right, carry your eye to the act which, in the circumstances in question,
would be a violation of that right : the law creates the right by prohibiting
that act. Power, whether over a man's own person, or over other persons,
or over things, is constituted in the first instance by permission : but in as
far as the law takes an active part in corroborating it, it is created by pro-
hibition, and by command : by prohibition of such acts (on the part of
other persons) as are judged incompatible with the exercise of it; and upon
occasion, by command of such acts as are judged to bo necessary for the
removal of such or such obstacles of the number of those which may occur
to impede the exercise of it. For every right which the law confers on
one party, whether that party be an individual, a subordinate class of

xvi.] Division of Offences. 225

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 fight, there is a certain be-
haviour 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

individuals, or the public, it thereby imposes on some other party a duty or
obligation. But there may be laws which command or prohibit acts, that
is, impose duties, without any other view than the benefit of the agent :
these generate no rights : duties, therefore, may be either extra-regarding
or self -regarding : extra-regarding have rights to correspond to them: self-
regarding, none.

That the exposition of the words power and right must, in order to be
correct, enter into a great variety of details, may be presently made appear.
One branch of the system of rights and powers, and but one, are those of
which property is composed : to be correct, then, it must, among other
things, be applicable to the whole tribe of modifications of which property
is susceptible. But the commands and prohibitions, by which the powers
and rights that compose those several modifications are created, are of
many different forms : to comprise the exposition in question within the
compass of a single paragraph, would therefore be impossible : to take as
many paragraphs for it as would be necessary, in order to exhibit these
different forms, would be to engage in a detail so ample, that the analysis
of the several possible species of property would compose only a part of it.
This labour, uninviting as it was, I have accordingly undergone : but the
result of it, as may well be imagined, seemed too voluminous and minute to
be exhibited in an outline like the present. Happily it is not necessary,
except only for the scientific purpose of arrangement, to the understanding
of any thing that need be said on the penal branch of the art of legislation.
In a work which should treat of the civil branch of that art, it would find
its proper place : and in such a work, if conducted upon the plan of the
present one, it would be indispensable. Of the limits which seem to sepa-
rate the one of these branches from the other, a pretty ample description
will be found in the next chapter : from which some further lights respect-
ing the course to bo taken for developing the notions to be annexed to the
words right and power, may incidentally be collected. Seo in particular,
3 and 4. See also par. Iv. of the present chapter.

I might have cut this matter very short, by proceeding in the usual
strain, and saying, that a power was a faculty, and that a right was a privi-
lege, and so on, following the beaten track of definition. But the inanity
of such a method, in cases like the present, has been already pointed out 1 :
a power is not a any thing : neither is a right a any thing : the case is,
they have neither of them any superior genus : these, together with duty,
obligation, and a multitude of others of the same stamp, being of the num-
ber of those fictitious entities, of which the import can by no other means
be illustrated than by showing the relation which they bear to real ones.

1 See Fragment of Government, ch. v. 6, uott?.
DENTHAM Q

226 Division of Offence*. [CHAP.

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 l .

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 variety of other phrases.

offences XXVI. Now it may occur, that a trust is oftentimes spoken

tra8t, S con- of as a species of condition 2 : that a trust is also spoken of as a

1 The first of these parties is styled in the law language, as well as in
common speech, by the name here given to him. The other is styled, in
the technical language of the English law, a cestuy que trust : in common
speech, as we have observed, there is, unfortunately, no name for him. As
to the law phrase, it is antiquated French, and though complex, it is still
elliptical, and to the highest degree obscure. The phrase in full length
would run in some such manner as this : cestuy al use de qui le trust est
Me : he to whose use the trust or benefit is created. In a particular case,
a cestuy que trust is called by the Roman \a,vr,Jidei-commissarius. In imi-
tation of this, I have seen him somewhere or other called in English &Jidc-
committee. This term, however, seems not very expressive. A fide-coir-
mittee,or, as it should have been, a//Wei'-committec, seems, literally speal:-
ing, to mean one who is committed to the good faith of another. Good
faith seems to consist in the keeping of a promise. But a trust may be
created without any promise in the case. It is indeed common enough to
exact a promise, in order the more effectually to oblige a man to do that
which he is made to promise he will do. But this is merely an accidental
circumstance. A trust may be created without any such thing. What is
it that constitutes a legal obligation in any case ? A command, express or
virtual, together with punishment appointed for the breach of it. By the
same means may an obligation be constituted in this case as well as any
other. Instead of the word beneficiary, which I found it necessary to
adopt, the sense would be better expressed by some such word as bene-
ficiendary (a word analogous in its formation to referendary), were it such
an one as the ear could bring itself to endure. This would put it more
effectually out of doubt, that the party meant was the party who ought to
receive the benefit, whether he actually receives it or no : whereas the word
beneficiary might be understood to intimate, that the benefit was actually
received : while in offences against trust the mischief commonly is, that
such benefit is reaped not by the person it was designed for, but by some
other : for instance, the trustee.

* It is for shortness' sake that the proposition is stated as it stands in
the text. If critically examined, it might be found, perhaps, to be scarcely
justifiable by the laws of language. For the fictitious entities, charac-
terised by the two abstract terms, trust and condition^ are not subalternate
but disparate. To speak with perfect precision, we should say that he who
is invested with a trust is, on that account, spoken of as being invested

xvi.] Division of Offences. 227

species of property : and that a condition itself is also spoken of dition, and
in the same light. It may be thought, therefore, that in the first w r hyranked

class, the division of offences against condition should have been sepamte
included under that of the offences against property : and that IV1S on8 '
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 exami-
nation 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 par-
ticular 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 dis-
tinguishing them in point of treatment, make it necessary to
find names.

In the first place, as there are, or at least may be (as we shall
see) conditions which are not trusts 1 , 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,

with a condition : viz. the condition of a trustee. We speak of the condi-
tion of a trustee as we speak of the condition of a husband or a father.
1 Infra, Iv.

228 Division of Offences. [CHAP.

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 denomina-
tion 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 com-
paratively as nothing. The word trust directs the attention at
once to the interests of that party for whom the person in ques-
tion 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 as-
semblage 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.

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

xvi.] Division of Offences. 229

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 con-
ditions, 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 unquestio liable
propriety they might be referred to the head of offences against
condition, could not, without the utmost violence done to lan-
guage, be forced under the appellation of offences against
property. Property, considered with respect to the proprietor,
implies invariably a benefit, and nothing else : whatever obliga-
tions 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 con-
ditions, 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

230 Division of Offences. [CHAP.

account tobe possessed of a property ; but both of them are alike
spoken of as being possessed of or being invested with a con-
dition : it is the master alone that is considered as possessing a pro-
perty, 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 mr,n'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 requi-
site *. The expedient then has been to create, as it were, on

1 It is to be observed, that in common speech, in the phrase the object of
a man's property, the words the object q/'are commonly left out; and by an
ellipsis, which, violent as it is, is now become more familiar than the phrase
at length, they have made that part of it which consists of the words a
inan*8 property perform the office of the whole. In some cases then it

xvi.] Division of Offences. 231

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 opera-
tions 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 con-
ditions 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 con-
sidered 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 prac-
ticable any where to draw the line.
Notwithstanding all this latitude, yet, among the relations in

was only on a part of the object that the acts in question might be per-
formed: and to say, on this account, that the object was a man's property,
was as much as to intimate that they might be performed on any part. In
other cases it was only certain particular acts that might be exercised on
the object : and to say of the object that it was his property, was as much
as to intimate that any acts whatever might be exercised on it. Some-
times the acts in question were not to be exercised but at a future time,
nor then, perhaps, but in the case of the happening of a particular event,
of which the happening was uncertain : and to say of an object that it was
his property, was as much as to intimate that the acts in question might
be exercised on it at any time. Sometimes the object on which the acts in
question were to have their termination, or their commencement, was a
human creature : and to speak of one human creature as being the property
of another is what would shock the ear every where but where slavery is
established, and even there, when applied to persons in any other condition
than that of slaves. Among the first Romans, indeed, the wife herself was
the property of her husband ; the child, of his father ; the servant, of his
master. In the civilised nations of modern times, tho two first kinds of
property are altogether at an end : and the last, unhappily not yet at an
end, but however verging, it is to be hoped, towards extinction. The hus-
band's property is now the company 1 of his wife ; the father's the guardian-
ship and service of his child ; the master's, the service of his servant.

1 The consortium, says the English Law.

Division of Offences. [CHAP.

virtue of which you are said to be possessed of a condition,there
is one at least which can scarcely, by the most forced construc-
tion, 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 asmaster, 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 con-
cerned, 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 ex-
ample : Being bound, in the capacity of land steward to a certain

xvi.] Division of Offences. 233

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 gene-
rical 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 par-
ticular person would denominate you his land steward, you were
bound, whether by usage or bycontract,to render him that single
sort of service which consists in the providing, by yourself or by
others, for the repairing of that bridge : in this case, as there is
not any such current denomination to which, in virtue of your
being bound to render this 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 farther 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 consider-
able, in point of duration, as to constitute a course of con-
siderable 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 per-
son, sometimes for that of another. Services which come to be
rendered to a particular person on a particular occasion, espe-
cially 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.

Division of Offences. [CHAP.

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 appel-
lation 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 ex-
hibit an analytical view of the several possible offences against
trust.
Offences XXVII. Offences against trust may be distinguished, in the

against trust . & * ,

their first place, into such as concern the existence of the trust in the
connection _ , .

with each hands ot such or such a person, and such as concern the exercise

of the functions that belong to it 1 . First then, with regard to
such as relate to its existence. An offence of this description,

1 We shall have occasion, a little farther on, to speak of the person in
whose hands the trust exists, under the description of the person who pos-
sesses, or is in possession of it, and thence of the possession of the trust
abstracted from the consideration of the possessor. However different the
expression, the import is in both cases the same. So irregular and imper-
fect is the structure of language on this head, that no one phrase can be
made to suit the idea on all the occasions on which it is requisite it should
be brought to view : the phrase must be continually shifted, or new modi-
lied : so likewise in regard to conditions, and in regard to property. The
being invested with, or possessing a condition; the being in possession of
an article of property, that is, if the object of the property be corporeal;
the having a legal title (defeasible or indefeasible) to the physical possession
of it, answers to the being in possession of a trust, or the being the person
in whose hands a trust exists. In like manner, to the exercise of the/imc-
tions belonging to a trust, or to a condition, corresponds the enjoyment ot an
article of property; that is, if the object of it be corporeal, the occupation.
These verbal discussions are equally tedious and indispensable. Striving
to cut a new road through the wilds of jurisprudence, I find myself con-
tinually distressed, for want of tools that are fit to work with. To frame a
complete set of new ones is impossible. All that can be done is, to make
here and there a new one in cases of absolute necessity, and for the rest, to
patch up from time to time the imperfections of the old.

As to the bipartition which this paragraph sets out with, it must be
acknowledged not to be of the nature of those which to a first glance afford
a sort of intuitive proof of their being exhaustive. There is not that
marked connection and opposition between the terms of it, which subsists
between contradictory terms and between terms that have the same
common genus. I imagine, however, that upon examination it would be
found to be exhaustive notwithstanding : and that it might even be demon-
strated so to be. But the demonstration would lead us too far out of the
ordinary track of language.

xvi.] Division of Offences. 235

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 : I. 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 arc disadvantageous, it may
be considered as a burthen 2 . 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 3 ; that is, which the legislator

1 See ch. vii. [Actions], iii.

2 If advantageous, it will naturally be on account of the powers or rights
that are annexed to the trust: if disadvantageous, on account of the duties.

3 It may seem a sort of anachronism to speak on the present occasion of
a trust, condition, or other possession, as one of which it may happen that
a man ought or ought not to have had possession given him by the law,
for, the plan here set out upon is to give such a view all along of the laws
that are proposed, as shall be taken from the reasons which there are for
making them : the reason then it would seem should subsist before the
law : not the law before the reason. Nor is this to be denied : for, unques-
tionably, upon the principle of utility, it may be said with equal truth of
those operations by which a trust, or any other article of property, is insti-
tuted, as of any other operations of the law, that it never can be expedient
they should be performed, unless some reason for performing them, deduced
from that principle, can be assigned. To give property to one man, you
must impose obligation on another : you must oblige him to do something
which he may have a mind not to do, or to abstain from doing something
which he may have a mind to do : in a word, you must in some way or
other expose him to inconvenience. Every such law, therefore, must at
any rate be mischievous in the first instance ; and if no good effects can bo
produced to set against the bad, it must bo mischievous upon the whole.
Some reasons, therefore, in this case, as in every other, there ought to be.
The truth is, that in the case before us, the- reasons are of too various and
complicated a nature to be brought to vie win an analytical outline like the
present. Where the offence is of the number of those by which -person or
reputation are affected, the reasons for prohibiting it lie on the surface, and
apply to every man alike. But property, before it can be offended against,
must be created, and at the instant of its creation distributed, as it were,
into parcels of different sorts and sizes, which require to be assigned, some
to one man and some to another, for reasons, of which many lie a little out
of sight, and which being different in different cases, would take up more

236 Division of Offences. [CHAP.

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 may be 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 1 . 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,

room than could consistently be allotted to them here. For the present
purpose, it is sufficient if it appear, that for the carrying on of the several
purposes of life, there are trusts, and conditions, and other articles of pro-
perty, which must bo possessed by somebody: and that it is not every
article that can, nor every article that ought, to be possessed by every
body. What articles ought to be created, and to what persons, and in
what cases they ought to be respectively assigned, are questions which
cannot bo settled here. Nor is there any reason for wishing that they
could, since the settling them one way or another is what would make no
difference in the. nature of any ofTence whereby any party may be exposed,
on the occasion of any such institution, to sustain a detriment.

1 In the former case, it may be observed, the act is of the negative kind :
in the latter, it will commonly be of the positive kind.

As to the expression non-investment of trust, I am sensible that it is not
perfectly consonant to the idiom of the language : the usage is to speak of
a person as being invested (that is clothed) with a trust, not of a trust as
of a thing that is itself invented or put on. The phrase at length would
be, the non-investment of a person with a trust : but this phrase is by
much too long-winded to answer the purpose of an appellative. I saw,
therefore, no other resource than to venture upon the ellipsis here employed.
The ancient lawyers, in the construction of their appellatives, have indulged
themselves in much harsher ellipsises without scruple. See above, xxv.
note. It is already the usage to speak of a trust as a thing that rests, and
as a thing that may be divested.

xvi.] Division of Offences. 237

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-invest-
ment, 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 invest-
ment, 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 estab-
lished. If then it ought not on any account to subsist, neither
non-investment, interception, nor divestment, can be wrong r ul
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 con-
sidered 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 tobe, 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, cither 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 1 or non-assumption : if the person, whom

1 I do not find that this word has yet been received into the English
language. In the Latin, however, it is very expressive, and is used in a
sense exactly suitable to the sense here given to it. Militiam detrectare,

238 Division of Offences. [CHAP,

the offence causes not to be in the trust, is any other person, the
offence must be either wrongful divestment, wrongful non-invest-
ment, 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 : i. 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 theoffences 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 pos-
session of a trust : those which concern the exercise of the func-
tions 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

to endeavour to avoid serving in the army, is a phrase not unfrequently
met with in the Roman writers.

xvi.] Division of Offences. 239

present instant) be either past OP 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 unconform-
able : if conformable, there has been no mischief in the case : if
unconf ormable, 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 some other party at large :
in the former of these cases, the offence may be styled positive
breach of trust ; in the other, abuse of trust l . In as far as
the fault lies in another person, the offence on his part may
be styled disturbance 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 your conduct unconformable to the purposes
of the trust, may be either 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 justbeen 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 uncon-

1 What is here meant by abuse of trust, is the exercise of a power
usurped over strangers, under favour of the powers properly belonging to
the trust. The distinction between what is here meant by breach of trust,
and what is here meant by abuse of trust, is not very steadily observed in
common speech : and in regard to public trusts, it will even in many cases
be imperceptible. The two offences are, however, in themselves perfectly
distinct : since the persons, by whom the prejudice is suffered, are in many
cases altogether different. It may be observed, perhaps, that with regard
to abuse of trust, there is but one species here mentioned ; viz. that which
corresponds to positive breach of trust : none being mentioned as corre-
sponding to negative breach of trust. The reason of this distinction will
presently appear. In favour of the parties, for whose benefit the trust was
created, the trustee is bound to act ; and therefore merely by his doing
nothing they may receive a prejudice : but in favour of other persons at
large he is not bound to act : and therefore it is only from some positive
act on his part that any prejudice can ensue to them.

240 Division of Offences. [CHAP.

formable, must be exercised either on yourself, or on other ob-
jects at large. If exercised on yourself, the influence they pos-
sess 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 inclina-
tion 1 , 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 in-
clination in question, it must be by applying to your will the
force of some seducing motive 2 . 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 men-
tioned, except the last, does the offence receive any new denoi: .i-
nation ; 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 3 . As to any farther distinctions, they will depend

1 See infra, liv. note ; and ch. xviii. [Indirect Legislation].

2 See ch. xi. [Dispositions], xxix.

3 To bribe a trustee, as such, is in fact neither more nor less than to
suborn him to be guilty of a breach or an abuse of trust. Now subornation is
of the number of those accessory offences which every principal offence, one as
well as another, is liable to be attended with. See infra, xxxi. note ; and B. I.
tit. [Accessory offences]. This particular species of subornation however
being one that, besides its having a specific name framed to express it, is
apt to engage a peculiar share of attention, and to present itself to view
in company with other offences against trust, it would have seemed an
omission not to have included it in that catalogue.

xvi.] JDivision of Offences. 241

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. I. 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.Wrongfuldetrectationof trust. 8. Wrong-
ful imposition of trust. 9. Negative breach of trust. 10. Posi-
tive breach of trust. II. Abuse of trust. 12. Disturbance of
trust. 13. Bribery.

XXVIII. From what has been said, it appears that there Prodigality

cannot be any other offences, on the part of a trustee, by which dismissed to

, . J . J , J . CiasaS.

a beneficiary can receive on any particular occasion any assign-
able specific prejudice. One sort of acts, however, there are by
which a trustee may be put in some danger of receiving a pre-
judice, 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 circum-
stances as have a tendency to increase the quantum of his sensi-
bility to the action of any motive of the sort in question l . Of
these acts, there seem to be no others, that will admit of a de-
scription 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 unliqui-
dated ; 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 The sub-
are perfectly analogous to those of offences by falsehood. T

trust may be private, semi-public, or public : it may concern ^Sso
property, person, reputation, or condition ; or any two or more by the" n
1 See ch. vi. [Sensibility] ii.

BENTHAM R

Division of Offences. [CHAP.

divisions of of those articles at a time : as will be more particularly ex-
ceding plained 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.
bet n w^n ion XXX - Lastl 7> if Jt be asked What sort of Cation there sub-
fdsehood y s * s * s Between falsehoods on one hand, and offences concerning
and offences trust on the other hand ; the answer is, they are altogether dis-
trust, parate. 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 essen-
tial 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.

Analysis XXXI. Returning now to class the first, let us pursue the
pursued no distribution a step farther, and branch out the several divisions
ciws e i. than of that class, as above exhibited, into their respective genera,
that is, into such minuter divisions as are capable of being cha-
racterised by denominations of which a great part are already
current among the people l . 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 circum-
stances : 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

1 In the enumeration of these genera, it is all along to be observed,
that offences of an accessory nature are not mentioned ; unless it be here
and there where they have obtained current names which seemed too much
in vogue to be omitted. Accessory offences are those which, without being
the very acts from which the mischief in question takes its immediate rise,
are, in the way of causality, connected with those acts. See ch. vii.
[Actions] xxiv. and B. I. tit, [Accessory offences].

xvi.] Division of Offences. 243

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 Offences
is disturbed, is either simple in its effects or complex. ItSSividuS
may be styled simple in its effects, when it affects him in one sraijpie e in
only of the articles or points in which his interest, as we have orcamp!ex? '
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 offence*
man's happiness is liable to be disturbed either I. By actions ^reSn
referring to his own person itself ; or 2. By actions referring t o theirgenera '
such external objects on which his happiness is more or less de-
pendent. 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 main-
tain, 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 1 : when positive, the coercion is styled com-
pulsion or constraint : when negative, restraint. Now the way
in which the coercion is disagreeable to him, may be by pro-
ducing 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 them-
selves which he is forced to perform or to abstain from, or

1 Ch. vii. [Actions] viii.
fi 2

244 Division of Offences. [CHAP.

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, banish-
ment l . Whether an act, the effect of which is to exert a per-
nicious influence on the person of him who suffers by it,operates
with or without the intervention of an act of his will, the mis-
chief it produces will either be mortal or not mortal. If not
mortal, it will either be reparable, that is temporary ; or irre-
parable, that is perpetual. If reparable, the mischievous act
may be termed a simple corporal injury ; if irreparable, an
irreparable corporal injury. Lastly, a pain that a man experi-
ences in his mind will either be a pain of actual sufferance, or a
pain of apprehension. If a pain of apprehension, either the
offender himself is represented as intending to bear a part in the
production of it, or he is not. In the former case the offence
may be styled menacement: in the latter case, as also where the
pain is a pain of actual sufferance, a simple mental injury. And
thus we have nine genera or kinds of personal injuries ; which,
when ranged in the order most commodious for examination,
will stand as follows ; viz. I. Simple corporal injuries. 2. Ir-
reparable corporal injuries. 3. Simple injurious restrainment.
4. Simple injurious compulsion 2 . 5. Wrongful confinement.

1 Of these, and the several other leading expressions which there is occa-
sion to bring to view in the remaining part of this analysis, ample defini-
tions will be found in the body of the work, conceived in terminis legis. To
give particular references to these definitions, would be encumbering the
page to little purpose.

2 Injurious restrainment at large, and injurious compulsion at large, are
here styled simple, in order to distinguish them from confinement, banish-
ment, robbery, and extortion ; all which are, in many cases, but so many
modifications of one or other of the two first-mentioned offences.

To constitute an offence an act of simple injurious restrainment, or simple
injurious compulsion, it is sufficient if the influence it exerts be, in the first
place, pernicious ; in the next place, exerted on the person by the medium

xvi.] Division of Offences. 345

6. Wrongful banishment. 7. Wrongful homicide. 8. Wrongful
menacement x . 9. Simple mental injuries 2 .

of the will : it is not necessary that that part of the person on which it is
exerted be the part to which it is pernicious : it is not even necessary that
it should immediately be pernicious to either of these parts, though to one
or other of them it must be pernicious in the long-run, if it be pernicious at
all. An act in which the body, for example, is concerned, may be very
disagreeable, and thereby pernicious to him who performs it, though neither
disagreeable nor pernicious to his body : for instance, to stand or sit in
public with a label on his back, or under any other circumstances of
ignominy,,

1 It may be observed, that wrongful menacement is included as well in
simple injurious restrainment as in simple injurious compulsion, except in
the rare case where the motives by which one man is prevented by another
from doing a thing that would have been materially to his advantage, or
induced to do a thing that is materially to his prejudice, are of the alluring
kind.

2 Although, for reasons that have been already given (supra xxxi), no
complete catalogue, nor therefore any exhaustive view, of either semi-public
or self-regarding offences, can be exhibited in this chapter, it may be a
satisfaction, however, to the reader, to see some sort of list of them, if it
were only for the sake of having examples before his eyes. Such lists can-
not any where be placed to more advantage than under the heads of the
several divisions of private extra-regarding offences, to which the semi-
public and self-regarding offences in question respectively correspond.
Concerning the two latter, however, and the last more particularly, it must
be understood that all I mean by inserting them here, is to exhibit the
mischief, if any, which it is of the nature of them respectively to produce,
without deciding upon the question, whether it would be worth while [see
ch. xiii. Cases unmeet] in every instance, for the sake of combating that
mischief, to introduce the evil of punishment. In the course of this detail,
it will be observed, that there are several heads of extra-regarding private
offences, to which the correspondent heads, either of semi-public or self-
regarding offences, or of both, are wanting. The reasons of these deficien-
cies will probably, in most instances, be evident enough upon the face of
them. Lest they should not, they are however specified in the body of the
work. They would take up too much room were they to bo inserted
here.

I. SEMI-PUBLIC OFFENCES through calamity. Calamities, by which the
persons or properties of men, or both, are liable to be affected, seem to be
as follows : I. Pestilence or contagion. 2. Famine, and other kinds of
scarcity. 3. Mischiefs producible by persons deficient in point of under-
standing, such as infants, idiots, and maniacs, for want of their being
properly taken care of. 4. Mischief producible by the ravages of noxious
animals, such as beasts of prey, locusts, &c. &c. 5. Collapsion, or fall of
large masses of solid matter, such as decayed buildings, or rocks, or masses
of snow. 6. Inundation or submersion. 7. Tempest. 8. Blight. 9. Con-
flagration. 10. Explosion. In as far as a man may contribute, by any
imprudent act of his, to give birth to any of the above calamities, such act
may be an offence. In as far as a man may fail to do what is incumbent on
him to do towards preventing them, such failure may be an offence.

II. SEMI-PUBLIC OFFENCES of mere delinquency. A whole neighbour-

Division of Offences. [CHAP.

Off int XXXIV. We come now to offences against reputation merely.

reputation. These require but few distinctions. In point of reputation there
is but one way of suffering, which is by losing a portion of the
good-will of others. Now, in respect of the good-will which
others bear you, you may be a loser in either of two ways : I. By
the manner in which you are thought to behave yourself ; and
2. By the manner in which others behave, or are thought to be-
have, towards you. To cause people to think that you yourself
have so behaved, as to have been guilty of any of those acts
which cause a man to possess less than he did before of the
good-will of the community, is what may be styled defamation.
But such is the constitution of human nature, and such the force
of prejudice, that a man merely by manifesting his own want of
good- will towards you, though ever so unjust in itself, and ever
so unlawfully expressed, may in a manner force others to with-
draw from you a part of theirs. When he does this by words,
or by such actions as have no other effect than in as far as they

hood may be made to suffer, i. Simple corporal injuries : in other words,
they may be made to suffer in point of health, by offensive or dangerous
trades or manufactures : by selling or falsely puffing off unwholesome medi-
cines or provisions : by poisoning or drying up of springs, destroying of
aqueducts, destroying woods, walls, or other fences against wind and rain :
by any kinds of artificial scarcity ; or by any other calamities intentionally
produced. 2. and 3. Simple injurious restrainment, and simple injurious
compulsion : for instance, by obliging a whole neighbourhood, by dint of
threatening hand- bills, or threatening discourses, publicly delivered, to join,
or forbear to join, in illuminations, acclamations, outcries, invectives, sub-
scriptions, undertakings, processions, or any other mode of expressing joy or
grief, displeasure or approbation; or, in short, in any other course of conduct
whatsoever. 4. and 5. Confinement and banishment : by the spoiling of
roads, bridges, or ferry- boats : by destroying or unwarrantably pre-occupy-
ing public carriages, or houses of accommodation. 6. By menacement : as
by incendiary letters, and tumultuous assemblies : by newspapers or hand-
bills, denouncing vengeance against persons of particular denominations :
for example, against Jews, Catholics, Protestants, Scotchmen, Gascons,
Catalonians, &c. 7. Simple mental injuries : as by distressful, terrifying,
obscene, or irreligious exhibitions ; such as exposure of sores by beggars,
exposure of dead bodies, exhibitions or reports of counterfeit witchcraftsor
apparitions, exhibition of obscene or blasphemous prints : obscene or blas-
phemous discourses held in public : spreading false news of public defeats in
battle, or of other misfortunes.

III. Self-regarding offences against person. I. Fasting. Abstinence
from venery, self-flagellation, self-mutilation, and other self-denying f nd
self- tormenting practices. 2. Gluttony, drunkenness, excessive venery, &nd
other species of intemperance. 3. Suicide.

xvi.] Division of Offences. 247

stand in the place of words, the offence may be styled vilifica-
tion. When it is done by such actions as, besides their having
this effect, are injuries to the person, the offence may be styled
a personal insult: if it has got the length of reaching the body, a
corporal insult : if it stopped short before it reached that length,
it may be styled insulting menacement. And thus we have two
genera or kinds of offences against reputation merely ; to wit,
I. Defamation: and, 2. Vilification, or Revilement 1 . As to
corporal insults, and insulting menacement, they belong to the
compound title of offences against person and reputation both
together.

XXXV. If the property of one man suffers by the delinquency Offences
of another, such property either was in trust with the offender, property,
or it was not : if it was in trust, the offence is a breach of trust,
and of whatever nature it may be in other respects, may be
styled dissipation in breach of trust, or dissipation of property in
trust. This is a particular case : the opposite one is the more
common : in such case the several ways in which property may,
by possibility, become the object of an offence, may be thus con-
ceived. Offences against property, of whatever kind it be, may
be distinguished, as hath been already intimated 2 , into such as
concern the legal possession of it, or right to it, and such as con-
cern only the enjoyment of it, or, what is the same thing, the
exercise of that right. Under the former of these heads come,
as hath been already intimated 3 , the several offences of wrongful
non-investment, wrongful interception, wrongful divestment,
usurpation, and wrongful attribution. When in the commission
of any of these offences a falsehood has served as an instrument,
and that, as it is commonly called, a wilful, or as it might more
properly be termed, an advised* one, the epithet fraudulent may
be prefixed to the name of the offence, or substituted in the
room of the word wrongful. The circumstance of fraudulency
then may serve to characterise a particular species, comprisable

1 I. SEMI-PUBLIC OFFENCES, i. Calumniation and vilification of par-
ticular denominations of persons ; such as Jews, Catholics, &c.

II. SELF-REGARDING OFFENCES, i. Incontinence in females. 2. Incest.

2 Supra xxvii. s Ib. 4 See ch. ix. [Consciousness] ii.

248 Division of Offences. [CHAP.

under each of those generic heads : in like manner the circum-
stance of force, of which more a little farther on, may serve to
characterise another. With respect to wrongful interception in
particular, the invest itive event by which the title to the thing
in question should have accrued to you, and for want of which
such title is, through the delinquency of the offender, as it were,
intercepted, is either an act of his own, expressing it as his will,
that you should be considered by the law as the person who is
legally in possession of it, or it is any other event at large : in the
former case, if the thing, of which you should have been put into
possession, is a sum of money to a certain amount, the offence is
that which has received the name of insolvency; which branch
of delinquency, in consideration of the importance and extent
of it, may be treated on the footing of a distinct genus of itself l .

Payment, what. l The light in which the offence of insolvency is here exhibited, may
perhaps at first consideration be apt to appear not only novel but im-
proper. It may naturally enough appear, that when a man owes you a
sum of money, for instance, the right to the money is yours already,
and that what he withholds from you by not paying you, is not the legal
title to it, possession of it, or power over it, but the physical possession
of it, or power over it, only. But upon a more accurate examination
this will be found not to be the case. What is meant by payment, is
always an act of investitive power, as above explained ; an expression of
an act of the will, and not a physical act : it is an act exercised with
relation indeed to the thing said to be paid, but not in a physical sense
exercised upon it. A man who owes you ten pounds, takes up a handful
of silver to that amount, and lays it down on a table at which you are
sitting. If then by words, or gestures, or any means whatever, addressing
himself to you, he intimates it to be his will that you should take up the
money, and do with it as you please, he is said to have paid you : but if
the case was, that he laid it down not for that purpose, but for some other,
for instance, to count it and examine it, meaning to take it up again him-
self, or leave it for somebody else, he has not paid you : yet the physical
acts, exercised upon the pieces of money in question, are in both cases the
same. Till he does express a will to that purport, what you have is not,
properly speaking, the legal possession of the money, or a right to the
money, but only a right to have him, or in his default perhaps a minister of
justice, compelled to render you that sort of service, by the rendering of
which he is said to pay you : that is, to express such will as above-
mentioned, with regard to some corporeal article, or other of a certain
species, and of value equal to the amount of what he owes you : or, in other
words, to exercise in your favour an act of investitive power with relation
to some such article.

True it is, that in certain cases a man may perhaps not be deemed,
according to common acceptation, to have paid you, without rendering you
a further set of services, and those of another sort : a set of services, which

xvi.] Division of Offences. 349

Next, with regard to such of the offences against property
as concern only the enjoyment of the object in question. This
object must be either a service, or set of services 1 , which should
have been rendered by some person, or else an article belonging
to the class of things. In the former case, the offence may be
styled wrongful withholding of services 2 . In the latter case it may
admit of farther modifications, which may be thus conceived :
When any object which you have had the physical occupation or
enjoyment of, ceases, in any degree, in consequence of the act of
another man, and without any change made in so much of that
power as depends upon the intrinsic physical condition of your
person, to be subject to that power ; this cessation is either
owing to change in the intrinsic condition of the thing itself,
or in its exterior situation with respect to you, that is, to its
being situated out of your reach. In the former case, the nature
of the change is either such as to put it out of your power to
make any use of it at all, in which case the thing is said to be
destroyed, and the offence whereby it is so treated may be termed

are rendered by the exercising of certain acts of a physical nature upon the
very thing with which he is said to pay you : to wit, by transferring the
thing to a certain place where you may be sure to find it, and where it may
be convenient for you to receive it. But these services, although the
obligation of rendering them should be annexed by law to the obligation of
rendering those other services in the performance of which the operation of
payment properly consists, are plainly acts of a distinct nature : nor are they
essential to the operation : by themselves they do not constitute it, and it
may be performed without them. It must be performed without them
wherever the thing to be transferred happens to be already as much within
the reach, physically speaking, of the creditor, as by any act of the debtor
it can be made to be.

This matter would have appeared in a clearer light had it been prac-
ticable to enter here into a full examination of the nature of property, and
the several modifications of which it is susceptible : but every thing cannot
be done at once.

1 Supra xxvi.

8 Under wrongful withholding of services is included breach of contract :
for the obligation to render services may be grounded either on contractor
upon other titles : in other words, the event of a man's engaging in a
contract is one out of many other investitive events from which the right of
receiving them may take its commencement. See ch. xvii. [Limits], iy.

Wore the word services to be taken in its utmost latitude (negative in-
cluded as well as positive) this one head would cover the whole law. To
this place then are to be referred such services only, the withholding of
which does not coincide with any of the other offences, for which separate
denominations have been provided.

250 Division of Offences. [CHAP.

wrongful destruction : or such only as to render the uses it is
capable of being put to of less value than befote, in which case
it is said to be damaged, or to have sustained damage, and the
offence may be termed wrongful endamagement. Moreover, in
as far as the value which a thing is of to you is considered as
being liable to be in some degree impaired, by any act on the
part of any other person exercised upon that thing, although on
a given occasion no perceptible damage should ensue, the exer-
cise of any such act is commonly treated on the footing of an
offence, which may be termed wrongful using or occupation.

If the cause of the thing's failing in its capacity of being of
use to you, lies in the exterior situation of it with relation to
you, the offence may be styled wrongful detainment 1 . Wrongful
detainment, or detention, during any given p'eriod of time, may
either be accompanied with the intention of detaining the thing
for ever (that is for an indefinite time), or not : if it be, and if
it be accompanied at the same time with the intention of not
being amenable to law for what is done, it seems to answer to
the idea commonly annexed to the word embezzlement, an offence
which is commonly accompanied with breach of trust 2 . In the
case of wrongful occupation, the physical faculty of occupying
mayhavebeen obtained with or without the assistance or consent
of the proprietor, or other person appearing to have a right to

1 In the English law, detinue and detainer : detinue applied chiefly to
movables ; detainer, to immovables. Under detinue and detainer cases
are also comprised, in which the offence consists in forbearing to transfer
the legal possession of the thing : such cases may be considered as coining
under the head of wrongful non-investment. The distinction between
mere physical possession and legal possession, where the latter is short-
lived and defeasible, seems scarcely hitherto to have been attended to. In
a multitude of instances they are confounded under the same expressions.
The cause is, that probably under all laws, and frequently for very good
reasons, the legal possession, with whatever certainty defeasible upon the
event of a trial, is, down to the time of that event, in many cases annexed
to the appearance of the physical.

2 In attempting to exhibit the import belonging to this and other names
of offences in common use, I must be understood to speak all along with
the utmost diffidence. The truth is, the import given to them is commonly
neither determinate nor uniform : so that in the nature of things, no defi-
nition that can be given of them by a private person can be altogether an
exact one. To fix the sense* of them belongs only to the legislator.

xvi.] Division of Offences. 251

afford such assistance or consent. If without such assistance or
consent, and the occupation be accompanied with the intention
of detaining the thing for ever, together with the intention of
not being amenable to law for what is done, the offence seems to
answer to the idea commonly annexed to the word theft or stealing.
If in the same circumstances a force is put upon the body of any
person who uses, or appears tobedisposed to use, any endeavours
to prevent the act, this seems to be one of the cases in which
the offence is generally understood to come under the name of
robbery.

If the physical faculty in question was o btained with the as-
sistance or consent of a proprietor or other person above spoken
of, and still the occupation of the thing is an offence, it may have
been either because the assistance or consent was not fairly or
because it was not freely obtained. If not fairly obtained, it
was obtained by falsehood, which, if advised, is in such a case
termed fraud : and the offence, if accompanied with the inten-
tion of not being amenable to law, may be termed fraudulent
obtainment or defraudment 1 . If not freely obtained, it was ob-
tained by force : to wit, either by a force put upon the body,
which has been already mentioned, or by a force put upon the
mind. If by a force put upon the mind, or in other words, by
the application of coercive motives 2 , it must be by producing
the apprehension of some evil: which evil, if the act is an offence,
must be some evil to which on the occasion in question the one
person has no right to expose the other. This is one case in
which, if the offence be accompanied with the intention of de-
taining the thing for ever, whether it be or be not accompanied
with the intention of not being amenable to law, it seems to
agree with the idea of what is commonly meant by extortion.
Now the part a man takes in exposing another to the evil in

1 The remaining cases come under the head of usurpation, or wrongful
investment of property. The distinction seems hardly hitherto to have
been attended to : it turns like another, mentioned above, upon the dis-
tinction between legal possession and physical. The same observation
may be applied to the case of extortion hereafter following.

8 Vide aupra, xxvii.

252 Division of Offences. [CHAP.

question, must be either a positive or a negative part. In the
former case, again, the evil must either be present or distant.
In the case then where the assistance or consent is obtained by
a force put upon the body, or where, if by a force put upon the
mind, the part taken in the exposing a man to the apprehension
of the evil is positive, the evil present, and the object of it his
person, and if at any rate the extortion, thus applied, be accom-
panied with the intention of not being amenable to law, it seems
to agree with the remaining case of what goes under the name
of robbery.

As to dissipation in breach of trust, this, when productive of
a pecuniary profit to the trustee, seems to be one species of what
is commonly meant by peculation. Another, and the only re-
maining one, seems to consist in acts of occupation exercised by
the trustee upon the things which are the objects of the fiduciary
property, for his own benefit, and to the damage of the benefi-
ciary. As to robbery, this offence, by the manner in which the
assistance orconsentisobtained,becomes an offence against pro-
perty and personat the same time. Dissipation inbreachof trust,
and peculation, may perhaps be more commodiously treated
of under the head of offences against trust 1 . After these excep-
tions, we have thirteen genera or principal kinds of offences
against property, which, when ranged in the order most commo-
dious for examination, may stand as follows, viz. I. Wrongful
non-investment of property. 2. Wrongful interception of pro-
perty. 3. Wrongful divestment of property. 4. Usurpation of
property. 5. Wrongful investment of property. 6. Wrongful
withholding of services. 7. Wrongful destruction or endamage-
ment. 8. Wrongful occupation. 9. Wrongful detainment.
10. Embezzlement. II. Theft. 12. Defraudment. 13. Ex-
tortion 2 .

1 Usury, which, if it must be an offence, is an offence committed with
consent, that is, with the consent of the party supposed to be injured, can-
not merit a place in the catalogue of offences, unless the consent were
either unfairly obtained or unfreely : in the first case, it coincides with
defraudment ; in the other, with extortion.

8 I. SEMI-PUBLIC OFFENCES, i. Wrongful divestment, interception, usur-
pation, &c. of valuables, which are the property of a corporate body ; or

xvj.] Division of Offences. 253

We proceed now to consider offences which arc complex in
their effects. Regularly, indeed, we should rome to offences
against condition ; but it will be more convenient to speak
first of offences by which a man's interest is affected in two
of the preceding points at once.

XXXVI. First, then, with regard to offences which affect Offences
person and reputation together. When any man, by a mode of person and
treatment which affects the person, injures the reputation of repu
another, his end and purpose must have been either his own im-
mediate pleasure, or that sort of reflected pleasure, which in cer-
tain circumstances may be reaped from the suffering of another.
Now the only immediate pleasure worth regarding, which any
one can reap from the person of another, and which at the same
time is capable of affecting the reputation of the latter, is the
pleasure of the sexual appetite 1 . This pleasure, then, if reaped
at all, must have been reaped either against the consent of the
party, or with consent. If with consent, the consent must have
been obtained either freely and fairly both, or freely but not
fairly, or else not even freely ; in which case the fairness is out
of the question. If the consent be altogether wanting, the offence
is called rape : if not fairly obtained, seduction simply : if not
freely, it may be called forcible seduction. In any case, either
the offence has gone the length of consummation, or has stopped
short of that period ; if it has gone that length, it takes one or
other of the names just mentioned : if not, it may be included
alike in all cases under the denomination of a simple lascivious
injury. Lastly, to take the case where a man injuring you in
your reputation, by proceedings that regard your person, does it

which are in the indiscriminate occupation of a neighbourhood ; such as
parish churches, altars, relics, and other articles appropriated to the pur-
poses of religion : or things which are in the indiscriminate occupation of
the public at large ; such as mile-stones, market-houses, exchanges, public
gardens, and cathedrals. 2. Setting on foot what have been called bubbles,
or fraudulent partnership, or gaming adventures ; propagating false news,
to raise or sink the value of stocks, or of any other denomination of
property.

II. SELF-REGARDING OFFENCES, i. Idleness. 2. Gaming. 3. Other
species of prodigality.

1 See oh. v. [Pleasures and Pains].

254 Division of Offences. [CHAP.

for the sake of that sort of pleasure which will sometimes result
from the contemplation of another's pain. Under these circum-
stances either the offence has actually gone the length of a cor-
poral injury, or it has rested in menacement : in the first case it
may be styled a corporal insult; in the other, it may come under
the name of insulting menacement. And thus we have six genera,
or kind of offences, against person and reputation together;
which, when ranged in the order most commodious for con-
sideration, will stand thus : I. Corporal insults. 2. Insulting
menacement. 3. Seduction. 4. Rape. 5. Forcible seduction.
6. Simple lascivious injuries 1 .

Offences XXXVII. Secondly, with respect to those which affect person
person and and property together. That a force put upon the person of a
man may be among the means by which the title to property
may be unlawfully taken away or acquired, has been already
stated 2 . A force of this sort then is a circumstance which may
accompany the offences of wrongful interception, wrongful di-
vestment, usurpation, and wrongful investment. But in these
cases the intervention of this circumstance does not happen to
have given any new denomination to the offence 3 . In all or any
of these cases, however, by prefixing the epithet forcible, we may
have so many names of offences, which may either be considered
as constituting so many species of the genera belonging to the
division of offences against property, or as so many genera be-
longing to the division now before us. Among the offences that
concern the enjoyment of the thing, the case is the same with
wrongful destruction and wrongful endamagement; as also with
wrongful occupation and wrongful detainment. As totheoffence
of wrongful occupation, it is only in the case where the thing
occupied belongs to the class of immovables, that, when accom-
panied by the kind of force in question, has obtained a particular

1 I. SEMI-PUBLIC OFFENCES none.

II. SELF-REGARDING OFFENCES, i. Sacrifice of virginity. 2. Inde-
cencies not public.

a Supra.

3 In the technical language of the English law, property so acquired is
said to be acquired by duress.

xvi.] Division of Offences. 255

name which is in common use : in this case it is called ford lie
entry : forcible detainment, as applied also to immovables, but
only to immovables, has obtained, among lawyers at least, the
name of forcible detainer 1 . And thus we may distinguish ten
genera, or kinds of offences, against person and property together,
which, omitting for conciseness' sake the epithet wrongful, will
stand thus : I. Forcible interception of property. 2. Forcible
divestment of property. 3. Forcible usurpation. 4. Forcible
investment. 5. Forcible destruction or endamagement. 6. For-
cible occupation of movables. 7. Forcible entry. 8. Forcible
detainment of movables. 9. Forcible detainment of immov-
ables. 10. Robbery 2 .

XXXVIII. We come now to offences against condition. A offences
man's condition or station in life is constituted by the legal condition.
relation he bears to the persons who are about him ; that is, as domestic 18
we have already had occasion to show 3 , by duties, which, by orcivi1 '
being imposed on one side, give birth to rights or powers on the

other. These relations, it is evident, may be almost infinitely
diversified. Some means, however, may be found of circum-
scribing the field within which the varieties of them are dis-
played. In the first place, they must either be such as are
capable of displaying themselves within the circle of a private
family, or such as require a larger space. The conditions con-
stituted by the former sort of relations may be styled domestic :
those constituted by the latter, civil.

XXXIX. As to domestic conditions, the legal relations by Domestic
which they are constituted may be distinguished into I. Such as grounded on

1 Applied to movables, the circumstance of force has never, at least by
the technical part of the language, been taken into account : no such com-
bination of terms as forcible occupation is in current use. The word detinue
is applied to movables only : and (in the language of the law) the word
forcible has never been combined with it. The word applied to immov-
ables is detainer : this is combined with the word forcible : and what is
singular, it is scarcely in use without that word. It was impossible to
steer altogether clear of this technical nomenclature, on account of the
influence which it has on the body of the language.

8 I. SEMI-PUBLIC OFFENCES, i. Incendiarism. 2. Criminal inundation.
II. SELF-REGARDING OFFENCES none.

8 Supra, xxv. note.

256 Division of Offences. [CHAP.

natural arc superaclded to relations purely natural : and 2. Such as,
ships. without any such natural basis, subsist purely by institution.
By relations purely natural, I mean those which may be said to
subsist between certain persons in virtue of the concern which
they themselves, or certain other persons, have had in the process
which is necessary to the continuance of the species. These
relations may be distinguished, in the first place, into contiguous
and uncontiguous. The uncontiguous subsist through the inter-
vention of such as are contiguous. The contiguous may be dis-
tinguished, in the first place, into connubial, and post-connubial 1 .
Those which may be termed connubial are two : I. That which
the male bears towards the female : 2. That which the female
bears to the male 2 . The post-connubial are either productive or
derivative. The productive is that which the male and female
above-mentioned bear each of them towards the children who are
the immediate fruit of their union; this is termed the relation of
parentality. Now as the parents must be, so the children may
be, of different sexes. Accordingly the relation of parentality
may be distinguished into four species : I. That which a father
bears to his son : this is termed paternity. 2. That which a

1 By the terms connubial and post-connubial, all I mean at present to
bring to view is, the mere physical union, apart from the ceremonies and
legal engagements that will afterwards be considered as accompanying it.
Relations 2 The vague and undetermined nature of the fictitious entity, called fi
everytwo & m relation, is, on occasions like the present, apt to bo productive of a good
objects. d ea i o f confusion. A relation is either said to be borne by one of the
objects which are parties to it, to the other, or to subsist between them.
The latter mode of phraseology is, perhaps, rather the more common.
In such case the idea seems to be, that from the consideration of the two
objects there results but one relation, which belongs as it were in common
to them both. In some cases, this perhaps may answer the purpose very
well : it will not, however, in the present case. For the present purpose it
will be necessary we should conceive two relations as resulting from the
two objects, and borne, since such is the phrase, by the one of them to or
towards the other : one relation borne by the first object to the second :
another relation borne by the second object to the first. This is necessary
on two accounts : i. Because for the relations themselves there are in
many instances separate names : for example, the relations of guardianship
and wardship : in which case, the speaking of them as if they were but
one, may be productive of much confusion. 2. Because the two different
relationships give birth to so many conditions : which conditions are so far
different, that what is predicated and will hold good of the one, will, in
various particulars, as we shall see, not hold good of the other.

xvi.] Division of Offences. 257

father bears to his daughter : this also is termed paternity.
3. That which a mother bears to her son : this is called mater-
nity. 4. That which a mother bears to her daughter : this also
is termed maternity. Uncontiguous natural relations may be
distinguished into immediate and remote. Such as are imme-
diate, are what one person bears to another in consequence of
their bearing each of them one simple relation to some third
person. Thus the paternal grandfather is related to the paternal
grandson by means of the two different relations, of different
kinds, which together they bear to the father : the brother on
the father's side, to the brother, by means of the two relations of
the same kind, which together they bear to the father. In the
same manner we might proceed to find places in the system for
the infinitely diversified relations which result from the com-
binations that may be formed by mixing together the several
sorts of relationships by ascent, relationships by descent, col-
lateral relationships, and relationships by affinity : which
latter, when the union between the two parties through whom
the affinity takes place is sanctioned by matrimonial solemnities,
are termed relationships by marriage. But this, as it would be
a most intricate and tedious task, so happily is it, for the pre-
sent purpose, an unnecessary one. The only natural relations
to which it will be necessary to pay any particular attention,
are those which, when sanctioned by law, give birth to the con-
ditions of husband and wife, the two relations comprised under
the head of parentality, and the corresponding relations com-
prised under the head of filiality or filiation.

What then are the relations of a legal kind which can be
superinduced upon the above-mentioned natural relations? They
must be such as it is the nature of law to give birth to and
establish. But the relations which subsist purely by institution
exhaust, as we shall see, the whole stock of relationships which
it is in the nature of the law to give birth to and establish.
The relations then which can be superinduced upon those which
are purely natural, cannot be in themselves any other than what
are of the number of those which subsist purely by institution :

BENTHAM 8

258 Division of Offences. [CHAP.

so that all the difference there can be between a legal relation
of the one sort, and a legal relation of the other sort, is, that
in the former case the circumstance which gave birth to
the natural relation serves as a mark to indicate where the
legal relation is to fix : in the latter case, the place where
the legal relation is to attach is determined not by that cir-
cumstance but by some other. From these considerations it
will appear manifestly enough, that for treating of the several
sorts of conditions, as well natural as purely conventional, in
the most commodious order, it will be necessary to give the
precedence to the latter. Proceeding throughout upon the same
principle, we shall all along give the priority, not to those which
are first by nature, but to those which are most simple in point
of description. There is no other way of avoiding perpetual
anticipations and repetitions.
Domestic XL. We come now to consider the domestic or family rela-

whicharo tions, which are purely of legal institution. It is to these in

purely of . .

legal effect, that both kinds of domestic conditions, considered as the

work of law, are indebted for their origin. When the law, no
matter for what purpose, takes upon itself to operate, in a matter
in which it has not operated before, it can only be by imposing
obligation 1 . Now when a legal obligation is imposed on any
man, there are but two ways in which it can in the first instance
be enforced. The one is by giving the power of enforcing it to
the party in whose favour it is imposed : the other is by reserving
that power to certain third persons, who, in virtue of their pos-
sessing it, are styled ministers of justice. In the first case, the
party favoured is said to possess not only a right as against the
party obliged, but also a power over him : in the second case, a
right only, uncorroborated by power. In the first case, the party
favoured maybe styled a superior, and as they are bothmembers
of the same family, a domestic superior, with reference to the
party obliged : who, in the same case, may be styled a domestic
inferior, with reference to the party favoured. Now in point
of possibility, it is evident, that domestic conditions, or a kind
1 See cLxvii. [Limits], iii.

xvi.] Division of Offences. 259

of fictitious possession analogous to domestic conditions, might
have been looked upon as constituted, as well by rights alone,
without powers on either side, as by powers. But in point of
utility 1 it does not seem expedient : and in point of fact, pro-

1 Two persons, who by any means stand engaged to live together, can
never live together long, but one of them will choose that some act or other
should be done which the other will choose should not be done. When
this is the case, how is the competition to be decided ? Laying aside gene-
rosity and good- breeding, which are the tardy and uncertain fruits of long-
established laws, it is evident that there can be no certain means of deciding
it but physical power : which indeed is the very means by which family as
well as other competitions must have been decided, long before any such
office as that of legislator had existence. This then being the order of
things which the legislator finds established by nature, how should he do
better than to acquiesce in it? The persons who by the influence of causes
that prevail every where, stand engaged to live together, are, i . Parent and
child, during the infancy of the latter : 2. Man and wife : 3. Children of
the same parents. Parent and child, by necessity : since, if the child did
not live with the parent (or with somebody standing in the place of the
parent) it could not live at all : husband and wife, by a choice approaching
to necessity : children of the same parents, by the necessity of their living
each of them with the parents. As between parent and child, the necessity
there is of a power on the part of the parent for the preservation of the
child supersedes all farther reasoning. As between man and wife, that
necessity does not subsist. The only reason that applies to this case is the
necessity of putting an end to competition. The man would have the meat
roasted, the woman boiled: shall they both fast till the judge comes in to
dross it for them? The woman would have the child dressed in green ; the
man, in blue: shall the child be naked till the judge comes in to clothe it ?
This affords a reason for giving a power to one or other of the parties : but
it affords none for giving the power to the one rather than to the other.
How then shall the legislator determine ? Supposing it equally easy to
give it to either, let him look ever so long for a reason why he should give
it to the one rather than to the other, and he may look in vain. But how
does the matter stand already ? for there were men and wives (or, what
comes to the same thing, male and female living together as man and wife)
before there were legislators. Looking round him then, he finds almost
every where the male the stronger of the two ; and therefore possessing
already, by purely physical means, that power which he is thinking of
bestowing on one of them by means of law. How then can he do so well
as by placing the legal power in the same hands which are beyond compari-
son the more likely to be in possession of the physical ? in this way, few
transgressions, and few calls for punishment : in the other way, perpetual
transgressions, and perpetual calls for punishment. Solon is said to have
transferred the same idea to the distribution of state powers. Here then
was generalization : here was the work of genius. But in the disposal of
domestic power, every legislator, without any effort of genius, has been a
Solon. So much for reasons 1 : add to which, in point of motives*, that legis-

1 Social motives: sympathy for the public : love of reputation, cStc.
v Self. regarding motives: or social motives, which are social in a less extent : sympathy
for persons of a particular description : persons of the same sex*

82

260 Division of O/ences. [CHAP.

bably owing to the invariable perception which men must have
had of the inexpediency, no such conditions seem ever to have
been constituted by such feeble bands. Of the legal relation-
ships then, which are capable of being made to subsist within
the circle of a family, there remain those only in which the
obligation is enforced by power. Now then, wherever any such
power is conferred, the end or purpose for which it was con-
ferred (unless the legislator can be supposed to act without a
motive) must have been the producing of a benefit to somebody :
in other words, it must have been conferred for the sake of some-
body. The person then, for whose sake it is conferred, must
either be one of the two parties just mentioned, or a third party :
if one of these two, it must be either the superior or the inferior.
If the superior, such superior is commonly called a master ; and
the inferior is termed his servant : and the power may be termed
a beneficial one. If it be for the sake of the inferior that the
power is established, the superior is termed a guardian ; and
the inferior his ward: and the power, being thereby coupled with
a trust, may be termed & fiduciary one. If for the sake of a
third party, the superior may be termed a superintendent ; and
the inferior his subordinate. This third party will either be an
assignable individual or set of individuals, or a set of unassign-
able individuals. In this latter case the trust is either a public
or a semi-public one : and the condition which it constitutes is
not of the domestic, but of the civil kind. In the former case,
this third party or principal, as he may be termed, either has
a beneficial power over the superintendent, or he has not : if he
has, the superintendent is his servant, and consequently so also
is the subordinate : if not, the superintendent is the master of
the subordinate ; and all the advantage which the principal has
over his superintendent, it that of possessing a set of rights, un-
corroborated by power ; and therefore, as we have seen \ not fit

lators seem all to have been of the male sex, down to the days of Catherine.
I speak here of those who frame laws, not of those who touch them with
a sceptre.

1 Supra, note, page 259.

xvi.] Division of Offence*. 261

to constitute a condition of the domestic kind. But be the con-
dition what it may which is constituted by these rights, of what
nature can the obligations be, to which the superintendent is
capable of being subjected by means of them ? They are neither
more nor less than those which a man is capable of being sub-
jected to by powers. It follows, therefore, that the functions of
a principal and his superintendent coincide with those of a
master and his servant; and consequently that the offences rela-
tive to the two former conditions will coincide with the offences
relative to the two latter.

XLI. Offences to which the condition of a master, like any Offences
other kind of condition, is exposed, may, as hath been already condition of*
intimated 1 , be distinguished into such as concern the existence a ma
of the condition itself, and such as concern the performance of
the functions of it, while subsisting. First then, with regard to
such as affect its existence. It is obvious enough that the ser-
vices of one man may be a benefit to another : the condition of
a master may therefore be a beneficial one. It stands exposed,
therefore, to the offences of wrongful non-investment, wrongful
interception, usurpation, wrongful investment, and wrongful di-
vestment. But how should it stand exposed to the offences of
wrongful abdication, wrongful detrectation, and wrongful imposi-
tion ? Certainly it cannot of itself ; for services, when a man
has the power of exacting them or not, as he thinks fit, can never
be a burthen. But if to the powers, by which the condition of
a master is constituted, the law thinks fit to annex any obliga-
tion on the part of the master ; for instance, that of affording
maintenance, or giving wages, to the servant, or paying money
to anybody else ; it is evident that in virtue of such obligation
the condition may become a burthen. In this case, however,
the condition possessed by the master will not, properly speaking,
be the pure and simple condition of a master : it will be a kind
of complex object, resolvable into the beneficial condition of a
master, and the burthensomc obligation which is annexed to it.
Still however, if the nature of the obligation lies within a narrow
1 Vide supra, xxvii.

262 Division of Offences. [CHAP.

compass, and does not, in the manner of that which constitutes
a trust, interfere with the exercise of those powers by which the
condition of the superior is constituted, the latter, notwithstand-
ing this foreign mixture, will still retain the name of mastership 1 .
In this case therefore, but not otherwise, the condition of a
master may stand exposed to the offences of wrongful abdication,
wrongful detrectation, and wrongful imposition. Next as to the
behaviour of persons with reference to this condition, while con-
sidered as subsisting. In virtue of its being a benefit, it is ex-
posed to disturbance. This disturbance will either be the offence
of a stranger, or the offence of the servant himself. Where it is
the offence of a stranger, and is committed by taking the person
of the servant, in circumstances in which the taking of an object
belonging to the class of things would be an act of theft, or
(what is scarcely worth distinguishing from theft) an act of em-
bezzlement : it may be termed servant- stealing. Where it is the
offence of the servant himself, it is styled breach of duty. Now
the most flagrant species of breach of duty, and that which in-
cludes indeed every other, is that which consists in the servant's
withdrawing himself from the place in which the duty should be
performed. This species of breach of duty is termed elopement.
Again, in virtue of the power belonging to this condition, it is
liable, on the part of the master to abuse. But this power is
not coupled with a trust. The condition of a master is there-
fore not exposed to any offence which is analogoiis to breach of
trust. Lastly, on account of its being exposed to abuse, it may
be conceived to stand, in point of possibility, exposed to bribery.
But considering how few, and how insignificant, the persons are
who are liable to be subject to the power here in question, this
is an offence which, on account of the want of temptation, there
will seldom be any example of in practice. We may therefore

1 In most civilized nations there is a sort of domestic condition, in which
the superior is termed a master, while the inferior is termed sometimes
indeed a servant, but more particularly and more frequently an apprentice.
In this case, though the superior is, in point of usage, known by no other
name than that of a master, the relationship is in point of fact a mixed one,
compounded of that of master and that of guardian.

xvi.] Division of Offences. 263

reckon thirteen sorts of offences to which the condition of a
master is exposed ; viz. i. Wrongful non-investment of master-
ship. 2,. Wrongful interception of mastership. 3. Wrongful
divestmentof mastership. 4.Usurpationof mastership. S.Wrong-
f ul investment of mastership. 6. Wrongful abdication of master-
ship. 7. Wrongful detrectation of mastership. 8. Wrongful
imposition of mastership. 9. Abuse of mastership. 10. Dis-
turbance of mastership. 11. Breach of duty in servants.
12. Elopement of servants. 13. Servant-stealing.

XLII. As to the power by which the condition of a master is Various
constituted, this may be either limited or unlimited. When i
is altogether unlimited, the condition of the servant is styled
pure slavery. But as the rules of language are as far as can
be conceived from being steady on this head, the term slavery is
commonly made use of wherever the limitations prescribed to
the power of the master are looked upon as inconsiderable.
Whenever any such limitation is prescribed, a kind of fictitious
entity is thereby created, and, in quality of an incorporeal object
of possession, is bestowed upon the servant : this object is of the
class of those which are called rights : and in the present case is
termed, in a more particular manner, a liberty ; and sometimes a
privilege, an immunity, or an exemption. Now those limitations
on the one hand, and these liberties on the other, may, it is evi-
dent, be as various as the acts (positive or negative) which the
master may or may not have the power of obliging the servant
to submit to or to perform. Correspondent then to the infini-
tude of these liberties, is the infinitude of the modifications
which the condition of mastership (or, as it is more common to
say in such a case, that of servitude) admits of. These modifi-
cations, it is evident, may, in different countries, be infinitely
diversified. Indifferent countries, therefore, theoffences charac-
terised by the above names will, if specifically considered, admit
of very different descriptions. If there be a spot upon the earth
so wretched as to exhibit the spectacle of pure and absolutely
unlimited slavery, on that spot there will be no such thing as
any abuse of mastership ; which means neither more nor less

264 Division of Offences. [CHAP.

thanthatno abuse of mastership will there be treated onthe foot-
ing of an offence. As to the question, Whether any, and what,
modes of servitude ought to be established or kept on foot ? this
is a question, the solution of which belongs to the civil branch of
the art of legislation.

^LIII. Next, with regard to the offences that may concern
*^ e con( lition f a servant. It might seem at first sight, that a
condition of this kind could not have a spark of benefit belong-
ing to it : that it could not be attended with any other con-
sequences than such as rendered it a mere burthen. But a
burthen itself may be a benefit, in comparison of a greater bur-
then. Conceive a man's situation then to be such, that he must,
at any rate, be in a state of pure slavery. Still may it be mate-
rial to him, and highly material, who the person is whom he has
for his master. A state of slavery then, under one master, may
be a beneficial state to him, in comparison with a state of slavery
under another master. The condition of a servant then is ex-
posed to the several offences to which a condition, in virtue of
its being a beneficial one, is exposed \ More than this, where
the power of the master is limited, and the limitations annexed
to it, and thence the liberties of the servant, are considerable,
the servitude may even be positively eligible. For amongst those
limitations may be such as are sufficient to enable the servant
to possess property of his own : being capable then of possessing
property of his own, he may be capable of receiving it from his
master : in short, he may receive ivages, or other emoluments,
from his master ; and the benefit resulting from these wages
may be so considerable as to outweigh the burthen of the servi-

1 It may seem at first, that a person who is in the condition of a slave,
could not have it in his power to engage in such course of proceeding as
would be necessary, in order to give him an apparent title to be reckoned
among the slaves of another master. But though a slave in point of right,
it may happen that he has eloped for instance, and is not a slave in point
of fact : or, suppose him a slave in point of fact, and ever so vigilantly
guarded, still a person connected with him by the ties of sympathy, might
do that for him which, though willing and assenting, he might not be able
to do for himself : might forge a deed of donation, for example, from the
one master to the other.

xvi.] Dwi&on of Offences.

tude, and, by that means, render that condition more beneficial
upon the whole, and more eligible, than that of one who is not
in any respect under the control of any such person as a master.
Accordingly, by these means the condition of the servant may
be so eligible, that his entrance into it, and his continuance in it,
may have been altogether the result of his own choice. That
the nature of the two conditions may be the more clearly under-
stood, it may be of use to show the sort of correspondency there
is between the offences which affect the existence of the one, and
those which affect the existence of the other. That this cor-
respondency cannot but be very intimate is obvious at first sight.
It is not, however, that a given offence in the former catalogue
coincides with an offence of the same name in the latter cata-
logue: usurpation of servantship with usurpation of mastership,
for example. But the case is, that an offence of one denomina-
tion in the one catalogue coincides with an offence of a different
denomination in the other catalogue. Nor is the coincidence
constant and certain: but liable to contingencies, as we shall see.
First, then, wrongful non-investment of the condition of a ser-
vant, if it be the offence of one who should have been the master,
coincides with wrongful detrectation of mastership : if it be the
offence of a third person, it involves in it non-investment of
mastership, which, provided the mastership be in the eyes of him
who should have been master a beneficial thing, but not other-
wise, is wrongful. 2. Wrongful interception of the condition of
a servant, if it be the offence of him who should have been
master, coincides with wrongful detrectation of mastership : if it
be the offence of a third person, and the mastership be a bene-
ficial thing, it involves in it wrongful interception of master-
ship. 3. Wrongful divestment of servantship, if it be the offence
of the master, but not otherwise, coincides with wrongful ab-
dication of mastership : if it be the offence of a stranger, it
involves in it divestment of mastership, which, in as far as the
mastership is a beneficial thing, is wrongful. 4. Usurpation of
servantship coincides necessarily with wrongful imposition of
mastership : it will be apt to involve in it wrongful divestment

266 Division of 0/ences. [CHAP.

of mastership : but this only in the case where the usurper, pre-
viously to the usurpation, was in a state of servitude under some
other master. 5. Wrongful investment of servantship (the ser-
vantship being considered as a beneficial thing) coincides with
imposition of mastership ; which, if in the eyes of the pretended
master the mastership should chance to be a burthen, will be
wrongful. 6. Wrongful abdication of servantship coincides with
wrongful divestment of mastership. 7. Wrongful detrectation
of servantship, with wrongful non-investment of mastership.
8. Wrongful imposition of servantship, if it be the offence of the
pretended master, coincides with usurpation of mastership : if
it be the offence of a stranger, it involves in it imposition of
mastership, which, if in the eyes of the pretended master the
mastership should be a burthen, will be wrongful. As to abuse
of mastership, disturbance of mastership, breach of duty in
servants, elopement of servants, and servant-stealing, these are
offences which, without any change of denomination, bear equal
relation to both conditions. And thus we may reckon thirteen
sorts of offences to which the condition of a servant stands ex-
posed : viz. I. Wrongful non-investment of servantship. 2.
Wrongful interception of servantship. 3. Wrongful divestment
of servantship. 4. Usurpation of servantship. 5. Wrongful
investment of servantship. 6. Wrongful abdication of servant-
ship. 7. Wrongful detrectation of servantship. 8. Wrongful
imposition of servantship. 9. Abuse of mastership. 10. Dis-
turbance of mastership, n. Breach of duty in servants.
12. Elopement of servants. 13. Servant-stealing.
Guardian- XLIV. We now come to the offences to which the condition

ship, what , .. _ . _. , . . , ,

Necessity of of a guardian is exposed. A guardian is one who is invested
tiou. with power over another, living within the compass of the same

family, and called a ward ; the power being to be exercised for
the benefit of the ward. Now then, what are the cases in which
it can be for the benefit of one man, that another, living within
the compass of the same family, should exercise power over him ?
Consider either of the parties by himself, and suppose him, in
point of understanding, to be on a level with the other, it seems

xvi.] Division of Offences. 267

evident enough that no such cases can ever exist 1 . To the pro-
duction of happiness on the part of any given person (in like
manner as to the production of any other effect which is the re-
sult of human agency) three things it is necessary should concur :
knowledge, inclination, and physical power. Now as there is no
man who is so sure of being inclined, on all occasions, to promote
your happiness as you yourself are, so neither is there any man
who upon the whole can have had so good opportunities as you
must have had of knowing what is most conducive to that pur-
pose. For who should know so well as you do what it is that
gives you pain or pleasure 2 ? Moreover, as to power, it is mani-
fest that no superiority in this respect, on the part of a stranger,
could, for a constancy, make up for so great a deficiency as he
must lie under in respect of two such material points as know-
ledge and inclination. If then there be a case where it can be
for the advantage of one man to be under the power of another,
it must be on account of some palpable and very considerable
deficiency, on the part of the former, in point of intellects, or
(which is the same thing in other words) in point of knowledge
or understanding. Now there are two cases in which such pal-
pable deficiency is known to take place. These are, I. Where
a man's intellect is not yet arrived at that state in which it is
capable of directing his own inclination in the pursuit of happi-
ness : this is the case of infancy 3 . 2. Where by some particular
known or unknown circumstance his intellect has either never
arrived at that state, or having arrived at it has fallen from it :
which is the case of insanity.

By what means then is it to be ascertained whether a man's
intellect is in that state or no ? For exhibiting the quantity of
sensible heat in a human body we have a very tolerable sort of
instrument, the thermometer ; but for exhibiting the quantity

1 Consider them together indeed, take the sum of the two interests,
and the case, as we have seen (supra, xl), is then the reverse. That case,
it is to be remembered, proceeds only upon the supposition that the two
parties are obliged to live together ; for suppose it to be at their option to
part, the necessity of establishing the power ceases.

8 Ch. xvii. [Limits], i.

8 See ch. xiii. [Cases unmeet], iii.

268 Division of Offences. [CHAP.

of intelligence, we have no such instrument. It is evident,
therefore, that the line which separates the quantity of intelli-
gence which is sufficient for the purposes of self-government
from that which is not sufficient, must be, in a great measure,
arbitrary. Where the insufficiency is the result of want of age,
the sufficient quantity of intelligence, be it what it may, does
not accrue to all at the same period of their lives. It becomes
therefore necessary for legislators to cut the gordian knot, and
fix upon a particular period, at which and not before, truly or
not, every person whatever shall be deemed, as far as depends
upon age, to be in possession of this sufficient quantity *. In
this case then a line is drawn which may be the same for every
man, and in the description of which, such as it is, whatever
persons are concerned may be certain of agreeing : the circum-
stance of time affording a mark by which the line in question
may be traced with the utmost degree of nicety. On the other
hand, where the insufficiency is the result of insanity, there is
not even this resource : so that here the legislator has no other
expedient than to appoint some particular person or persons to
give a particular determination of the question, in every in-
stance in which it occurs, according to his or their particular
and arbitrary discretion. Arbitrary enough it must be at any
rate, since the only way in which it can be exercised is by
considering whether the share of intelligence possessed by the
individual in question does or does not come up to the loose
and indeterminate idea which persons so appointed may chance
to entertain with respect to the quantity which is deemed
sufficient.

1 In certain nations, women, whether married or not, have been placed
in a state of perpetual wardship : this has been evidently founded on the
notion of a decided inferiority in point of intellects on the part of the female
sex, analogous to that which is the result of infancy or insanity on the part
of the male. This is not the only instance in which tyranny has taken
advantage of its own wrong, alleging as a reason for the domination it
exercises, an imbecility, which, as far as it has been real, has been produced
by the abuse of that very power which it is brought to justify. Aristotle,
fascinated by the prejudice of the times, divides mankind into two distinct
species, that of freemen, and that of slaves. Certain men were born to be
slaves, and ought to bo slaves. -Why ? Because they are so.

xvi.] Division of Offences. 269

XLV. The line then being drawn, or supposed to be so, it is Duration to
expedient to a man who cannot, with safety to himself, be left in it. 8flven
his own power, that he should be placed in the power of another.
How long then should he remain so ? Just so long as his in-
ability is supposed to continue : that is, in the case of infancy,
till he arrives at that period at which the law deems him to be
of full age : in the case of insanity, till he be of sound mind and
understanding. Now it is evident, that this period, in the case
of infancy, may not arrive for a considerable time : and in the
case of insanity, perhaps never. The duration of the power be-
longing to this trust must therefore, in the one case, be very
considerable ; in the other case, indefinite.

XL VI. The next point to consider, is what may be the extent Powers that
of it ? for as to what ought to be, that is a matter to be settled, duties that
not in a general analytical sketch, but in a particular and cir- annexed
cumstantial dissertation. By possibility, then, this power may
possess any extent that can be imagined : it may extend to any
acts which, physically speaking, it may be in the power of the
ward to perform himself, or be the object of if exercised by the
guardian. Conceive the power, for a moment, to stand upon
this footing : the condition of the ward stands now exactly
upon a footing with pure slavery. Add the obligation by which
the power is turned into a trust : the limits of the power are
now very considerably narrowed. What then is the purport of
this obligation ? Of what nature is the course of conduct it
prescribes ? It is such a course of conduct as shall be best cal-
culated for procuring to the ward the greatest quantity of hap-
piness which his faculties, and the circumstances he is in, will
admit of : saving always, in the first place, the regard which the
guardian is permitted to show to his own happiness; and, in the
second place, that which he is obliged, as well as permitted, to
show to that of other men. This is, in fact, no other than that
course of conduct which the ward, did he but know how, ought, in
point of prudence, to maintain of himself : so that the business
of the former is to govern the latter precisely in the manner in
which this latter ought to govern himself. Now to instruct

270 Division of Ounces. [CHAP.

each individual in what manner to govern his own conduct in
the details of life, is the particular business of private ethics :
to instruct individuals in what manner to govern the conduct
of those whose happiness, during nonage, is committed to their
charge, is the business of the art of private education. The
details, therefore, of the rules to be given for that purpose, any
more than the acts which are capable of being committed in
violation of those rules, belong not to the art of legislation :
since, as will be seen more particularly hereafter x , such details
could not, with any chance of advantage, be provided for by the
legislator. Some general outlines might indeed be drawn by
his authority : and, in point of fact, some are in every civilized
state. But such regulations, it is evident, must be liable to
great variation : in the first place, according to the infinite
diversity of civil conditions which a man may stand invested
with in any given state : in the next place, according to the
diversity of local circumstances that may influence the nature of
the conditions which may chance to be established in different
states. On this account, theoffences which would beconstituted
by such regulations could not be comprised under any concise
and settled denominations, capable of a permanent and extensive
application. No place, therefore, can be allotted to them here.
Offences XL VII. By what has been said, we are the better prepared
conditim^of 6 f or taking an account of the offences to which the condition in
a guardian. q ues ^ on stands exposed. Guardianship being a private trust,
is of course exposed to those offences, and no others, by which a
private trust is liable to be affected. Some of them, however,
on account of the special quality of the trust, will admit of some
further particularity of description. In the first place, breach
of this species of trust may be termed mismanagement of
guardianship : in the second place, of whatever nature the
duties are which are capable of being annexed to this condition,
it must often happen, that in order to fulfil them, it is necessary
the guardian should be at a certain particular place. Mis-
management of guardianship, when it consists in the not being,
1 See ch, xvii. [Limits], i.

xvi.] flivtilon of Offences.

on the occasion in question, at the place in question, may be
teime&desertion of guardianship. Thirdly, It is manifest enough,
that the object which the guardian ought to propose to himself,
in the exercise of the powers to which those duties are annexed,
is to procure for the ward the greatest quantity of happiness
which can be procured for him, consistently with the regard
which is due to the other interests that have been mentioned :
for this is the object which the ward would have proposed to
himself, and might and ought to have been allowed to propose
to himself, had he been capable of governing his own conduct.
Now, in order to procure this happiness, it is necessary that he
should possess a certain power over the objects on the use of
which such happiness depends. These objects are either the
person of the ward himself, or other objects that are extraneous
to him. These other objects are either things or persons. As
to things, then, objects of this class, in as far as a man's happiness
depends upon the use of them, are styled his property. The
case is the same with the services of any persons over whom he
may happen to possess a beneficial power, or to whose services he
may happen to possess a beneficial right. Now when property
of any kind, which is in trust, suffers by the delinquency of him
with whom it is in trust, such offence, of whatever nature it is
in other respects, may be styled dissipation in breach of trust :
and if it be attended with a profit to the trustee, it may be
styled peculation 1 . Fourthly, For one person to exercise a power
of any kind over another, it is necessary that the latter should
either perform certain acts, upon being commanded so to do by
the former, or at least should suffer certain acts to be exercised
upon himself. In this respect a ward must stand upon the
footing of a servant : and the condition of a ward must, in this
respect, stand exposed to the same offences to which that of a
servant stands exposed : that is, on the part of a stranger, to
disturbance, which, in particular circumstances, will amount to
theft : on the part of the ward, to breach of duty : which, in
particular circumstances, maybe effected by elopement. Fifthly,

1 Supra, xxxv.

272 Division of Offcices. [CHAP.

There does not seem to be any offence concerning guardianship
that corresponds to abuse of trust : I mean in the sense to which
the last-mentioned denomination has been here confined *. The
reason is, that guardianship, being a trust of a private nature,
does not, as such, confer upon the trustee any power, either over
the persons or over the property of any party, other than the
beneficiary himself. If by accident it confers on the trustee a
power over any persons whose services constitute a part of the
property of the beneficiary, the trustee becomes thereby, in
certain respects, the master of such servants 2 . Sixthly, Bribery
also is a sort of offence to which, in this case, there is not com-
monly much temptation. It is an offence, however, which by
possibility is capable of taking this direction : and must there-
fore be aggregated to the number of the offences to which the
condition of a guardian stands exposed. And thus we have in
all seventeen of these offences : viz. I. Wrongful non-investment
of guardianship. 2. Wrongful interception of guardianship.
3. Wrongful divestment of guardianship. 4. Usurpation of
guardianship. 5. Wrongful investment of guardianship. 6.
Wrongful abdication of guardianship. 7. Detrectation of
guardianship. 8. Wrongful imposition of guardianship. 9.
Mismanagement of guardianship. 10. Desertion of guardian-
ship, n. Dissipation in prejudice of wardship. 12. Peculation
in prejudice of wardship. 13. Disturbance of guardianship. 14.
Breach of duty to guardians. 15. Elopement from guardians.
16. Ward-stealing. 17. Bribery in prejudice of wardship.
Offences XL VIII. Next, with regard to offences to which the con-
conditkm of dition of wardship is exposed. Those which first affect the
existence of the condition itself are as follows : I. Wrongful
non-investment of the condition of a ward. This, if it be the
offence of one who should have been guardian, coincides with
wrongful detrectation of guardianship : if it be the offence of
a third person, it involves in it non-investment of guardian-
ship, which, provided the guardianship is, in the eyes of him
who should have been guardian, a desirable thing, is wrongful.
1 Vide supra, xxv. * Vide supra, xl.

xvi.] Livisbn of Offences. 273

2. Wrongful interception of wardship. This, if it be the offence
of him who should have been guardian, coincides with wrongful
detrectation of guardianship : if it be the offence of a third
person, it involves in it interception of guardianship, which,
provided the guardianship is, in the eyes of him who should
have been guardian, a desirable thing, is wrongful. 3. Wrongful
divestment of wardship. This, if it bo the offence of the
guardian, but not other wise, coincides with wrongful abdication
of guardianship : if it be the offence of a third person, it in-
volves in it divestment of guardianship, which, if the guardian-
ship is, in the eyes of the guardian, a desirable thing, is wrongful.
4. Usurpation of the condition of a ward : an offence not very
likely to be committed. This coincides at any rate with wrong-
ful imposition of guardianship ; and if the usurper were already
under the guardianship of another guardian, it will involve in
it wrongful divestment of such guardianship l . 5. Wrongful
investment of wardship (the wardship being considered as a
beneficial thing) : this coincides with impositionof guardianship,
which, if in the eyes of the pretended guardian the guardianship
should be a burthen, will be wrongful. 6. Wrongful abdication
of wardship. This coincides with wrongful divestment of
guardianship. 7. Wrongful detrectation of wardship. This coin-
cides with wrongful interception of guardianship. 8. Wrongful
imposition of wardship. This, if the offender be the pretended
guardian,coincides with usurpationof guardianship: if astranger,
it involves in it wrongful imposition of guardianship. As to
such of the offences relative to this condition, as concern the
consequences of it while subsisting, they are of such a nature
that, without any change of denomination, they belong equally
to the condition of a guardian and that of a ward. We may

1 This effect it may be thought will not necessarily take place : since a
ward may have two guardians. One man then is guardian by right :
another man comes and makes himself so by usurpation. This may very
well be, and yet the former may continue guardian notwithstanding. How
then (it may be asked) is he divested of his guardianship ? The answer
is Certainly not of the whole of it : but, however, of a part of it : of such
part as is occupied, if one may so say, that is, of such part of the powers
and rights belonging to it as are exercised, by the usurper.

BENTHAM <J>

274 Division of Ojences. [CHAP.

therefore reckon seventeen sorts of offences relative to the con-
dition of a ward : I. Wrongful non-investment of wardship.
2. Wrongful interception of wardship. 3. Wrongful divestment
of wardship. 4. Usurpation of wardship. 5. Wrongful invest-
ment of wardship. 6. Wrongful abdication of wardship. 7.
Wrongful detrectation of wardship. 8. Wrongful imposition of
wardship. 9. Mismanagement of guardianship. 10. Desertion
of guardianship. II. Dissipation in prejudice of wardship.
12. Peculation in prejudice of wardship. 13. Disturbance of
guardianship. 14. Breach of duty to guardians. 15. Elope-
ment from guardians. 16, Ward-stealing. 17. Bribery in
prejudice of wardship.
Offences XLIX. We come now to the offences to which the condition

touching the 1,1

condition of of a parent stands exposed : and first, with regard to those by
which the very existence of the condition is affected. On this
occasion, in order to see the more clearly into the subject, it will
be necessary to distinguish between the natural relationship, and
the legal relationship which is superinduced as it were upon the
natural one. The natural one being constituted by a particular
event, which, either on account of its being already past, or on
some other account, is equally out of the power of the law
neither is, nor can be made, the subject of an offence. Is a man
your father ? It is not any offence of mine that can make you
not his son. Is he not your father ? It is not any offence of
mine that can render him so. But although he does in fact bear
that relation to you, I, by an offence of mine, may perhaps so
manage matters, that he shall not be thought to bear it : which,
with respect to any legal advantages which either he or you
could derive from such relationship, will be the same thing as if
he did not. In the capacity of a witness, I may cause the
judges to believe that he is not your father, and to decree
accordingly: or, in the capacity of a judge, I may myself decree
him not to be your father. Leaving then the purely natural
relationship as an object equally out of the reach of justice and
injustice, the legal condition, it is evident, will stand exposed to
the same offences, neither more nor less, as every other condition,

xvi.J Diviaim of Offences. 275

that is capable of being either beneficial or burthensome, stands
exposed to. Next, with regard to the exercise of the functions
belonging to this condition, considered as still subsisting. In
parentality there must be two persons concerned, the father and
the mother. The condition of a parent includes, therefore, two
conditions ; that of a father, and that of a mother, with respect
to such or such a child. Now it is evident, that between these
two parties, whatever beneficiary powers, and other rights, as
also whatever obligations, are annexed to the condition of a
parent, may be shared in any proportions that can be imagined.
But if in these several objects of legal creation, each of these two
parties have severally a share, and if the interests of all these
parties are in any degree provided for, it is evident that each of
the parents will stand, with relation to the child, in two several
capacities : that of a master, and that of a guardian. The con-
dition of a parent then, in as far as it is the work of law, may
be considered as a complex condition, compounded of that of a
guardian, and that of a master. To the parent then, in quality
of guardian, results a set of duties, involving, as necessary to
the discharge of them, certain powers : to the child, in the
character of a ward, a set of rights corresponding to the parent's
duties, and a set of duties corresponding to his powers. To the
parent again, in quality of master, a set of beneficiary powers,
without any other necessary limitation (so long as they last)
than what is annexed to them by the duties incumbent on him
in quality of a guardian : to the child, in the character of a
servant, a set of duties corresponding to the parent's beneficiary
powers, and without any other necessary limitation (so long as
they last) than what is annexed to them by the rights which
belong to the child in his capacity of ward. The condition of a
parent will therefore be exposed to all the offences to which
either that of a guardian or that of a master are exposed : and,
as each of the parents will partake, more or less, of both those
characters, the offences to which the two conditions are exposed
may be nominally, as they will be substantially, the same. Taking
them then all together, the offences to which the condition of

T 2

376 Division of Ofances. [CHAP-

a parent is exposed will stand as follows : I. Wrongful non-
investment of parentality *. 2. Wrongful interception of parent-
ality. 3. Wrongful divestment of parentality. 4. Usurpation
of parentality. 5. Wrongful in vestment of parentality. 6. Wrong-
ful abdication of parentality. 7. Wrongful detrectation of
parentality. 8. Wrongful imposition of parentality. 9. Mis-
management of parental guardianship. 10. Desertionof parental
guardianship. II. Dissipation in prejudice of filial wardship.
12. Peculation in prejudice of filial wardship. 13. Abuse of
parental powers. 14. Disturbance of parental guardianship.
15. Breach of duty to parents. 16. Elopement from parents.
17. Child-stealing. 18. Bribery in prejudice of filial wardship.

Offences L. Next with regard to the offences to which the filial con-

touchmg the e J

filial con- ditiou 2 , the conditionof a son or daughter, stands exposed. The

principles to be pursued in the investigation of offences of this
description have already been sufficiently developed. It will be
sufficient, therefore, to enumerate them without further dis-
cussion. The only peculiarities by which offences relative to
the condition in question stand distinguished from the offences
relative to all the preceding conditions, depend upon this one

1 At first view it may seem a solecism to speak of the condition of
parentality as one which a man can have need to be invested with. The
reason is, that it is not common for any ceremony to be required as neces-
sary to a man's being deemed in law the father of such or such a child.
But the institution of such a ceremony, whether advisable or not, is at
least perfectly conceivable. Nor are there wanting cases in which it has
actually been exemplified. By an article in the Roman law, adopted by
many modern nations, an illegitimate child is rendered legitimate by the
subsequent marriage of his parents. If then a priest, or other person whose
office it was, were to refuse to join a man and woman in matrimony, such
refusal, besides being a wrongful non-investment with respect to the two
matrimonial conditions, would be a wrongful non-investment of parentality
and filiation, to the prejudice of any children who should have been
legitimated.

a In English we have no word that will serve to express with propriety
the person who bears the relation opposed to that of parent. The word
child is ambiguous, being employed in another sense, perhaps more fre-
quently than in this : more frequently in opposition to a person ofjull age,
an adult, than in correlation to a parent. For the condition itself wo have
no other word than filiation : an ill-contrived term, not analogous to
paternity and maternity : the proper term would have beeufiliality : the
word filiation is as frequently, perhaps, and more consistently, put for the
act of establishing a person in the possession of the condition of filiality.

xvi.J Divmm of Offences. 277

circumstance ; viz. that it is certain every one must have had a
father and a mother : at the same time that it is not certain that
every one must have had a master, a servant, a guardian, or a
ward. It will be observed all along, that where a person, from
whom, if alive, the benefit would be taken, or on whom the
burthen would be imposed, be dead, so much of the mischief is
extinct along with the object of the offence. There still, how-
ever, remains so much of the mischief as depends upon the ad-
vantage or disadvantage which might accrue to persons related,
or supposed to be related, in the several remoter degrees, to him
in question. The catalogue then of these offences stands as
follows : i. Wrongful non investment of filiation. This, if it be
the offence of him or her who should have been recognised as the
parent, coincides with wrongful detrectation of parentality : if it
be the offence of a third person, it involves in it non-investment
of parentality, which, provided the parentality is, in the eyes of
him or her who should have been recognised as the parent, a
desirable thing, is wrongful. 2. Wrongful interception of filia-
tion. This, if it be the offence of him or her who should have
been recognised as the parent, coincides with wrongful detrecta-
tion of parentality : if it be the offence of a third person, it
involves in it interception of parentality, which, provided the
parentality is, in the eyes of him or her who should have been
recognised as parent, a desirable thing, is wrongful. 3. Wrongful
divestment of filiation. This, if it be the offence of him or her
who should be recognised as parent, coincides with wrongful
abdication of parentality : if it be the offence of a third person,
it involves in it divestment of parentality ; to wit, of paternity,
or of maternity, or of both ; which, if the parentality is, in the
eyes of him or her who should be recognised as parent, a desir-
able thing, are respectively wrongful. 4. Usurpation of filiation.
This coincides with wrongful imposition of parentality ; to wit,
either of paternity, or of maternity, or of both : and necessarily
involves in it divestment of parentality, which, if the parentality
thus divested were, in the eyes of him or her who are thus
divested of it, a desirable thing, is wrongful 5. Wrongful

278 Division of Offences. [CHAP.

investment of filiation : (the filiation being considered as a bene-
ficial thing.) This coincides with imposition of parentality, which,
if in the eyes of the pretended father or mother the parentality
should be an undesirable thing, will be wrongful. 6. Wrongful
abdication of filiation. This necessarily coincides with wrongful
divestment of parentality; it also is apt to involve in it wrongful
imposition of parentality ; though not necessarily either to the
advantage or to the prejudice of any certain person. For if a
man, supposed at first to be your son, appears afterwards not to
be yours, it is certain indeed that he is the son of some other
man, but it may not appear who that other man is. 7. Wrongful
detrectation of filiation. This coincides with wrongful non-
investment or wrongful interception of parentality. 8. Wrongful
imposition of filiation. This, if it be the offence of the pretended
parent, coincides necessarily with usurpation of parentality : if it
bethe offence of a third person, it necessarily involves imposition
of parentality ; as also divestment of parentality : either or both
of which, according to thecircumstanceabovementioned,mayor
may not be wrongful. 9. Mismanagement of parental guardian-
ship. 10. Desertion of parental guardianship. II. Dissipation
in prejudice of filial wardship. 12. Peculation in prejudice of
filial wardship. 13. Abuse of parental power. 14. Disturbance
of parental guardianship. 15. Breach of duty to parents.
16. Elopement from parents. 17. Child- stealing. 18. Bribery
in prejudice of parental guardianship.
Condition of LI. We shall now be able to apply ourselves with some

a husband. .

Powers, advantage to the examination of the several offences to which

rights! that the marital condition, or condition of a husband, stands exposed.

nexed to it. A husband is a man, between whom and a certain woman, who

in this case is called his wife, there subsists a legal obligation for

the purpose of their living together, and in particular for the

purpose of a sexual intercourse to be carried on between them.

This obligation will naturally be considered in four points of

view : I. In respect of its commencement. 2. In respect of the

placing of it. 3. In respect of the nature of it. 4. In respect of

its duration. Firstthen, it is evident, that in point of possibility,

xvi.] Divisfyn of Offences. 379

one method of commencement is as conceivable as another : the
time of its commencement might have been marked by one sort
of event (by one sort of signal, as it may here be called) as well
as by another. But in practice the signal has usually been, as
in point of utility it ought constantly to be, a contract entered
into by the parties : that is, a set of signs, pitched upon by the
law, as expressive of their mutual consent, to take upon them this
condition. Secondly, and thirdly, with regard to the placing of
the obligations which arc the result of the contract, it is evident
that they must resteither solely onone side,or mutually on both.
On the first supposition, the condition is not to be distinguished
from pure slavery. In this case, either the wife must be the
slave of the husband, or the husband of the wife. The first of
these suppositions has perhaps never been exemplified ; the op-
posing influence of physical causes being too universal to have
ever been surmounted : the latter seems to have been exemplified
but too often ; perhaps among the first Romans ; at any rate, in
many barbarous nations. Thirdly, with .regard to the nature
of the obligations. If they are not suffered to rest all on one
side, certain rights are thereby given to the other. There must,
therefore, be rights on both sides. Now, where there are mutual
rights possessed by two persons, as against each other, either
there are powers annexed to those rights, or not. But the
persons in question are, by the supposition, to live together : in
which case we have shown 1 , that it is not only expedient, but in
a manner necessary, that on one side there should be powers.
Now it is only on one side that powers can be : for suppose them
on both sides, and they destroy one another. The question is
then, In which of the parties these powers shall be lodged ? we
have shown, that on the principle of utility they ought to be
lodged in the husband. The powers then which subsist being
lodged in the husband, the next question is, Shall the interest
of one party only, or of both, be consulted in the exercise of
them ? it is evident, that on the principle of utility the interests
of both ought alike to be consulted : since in two persons,

1 Supra, xl. note.

280 Division of Offences. [CHAP,

taken together, more happiness is producible than in one. This
being the case, it is manifest, that the legal relation which the
husband will bear to the wife will be a complex one : com-
pounded of that of master and that of guardian.

Offences LIL The offences then to which the condition of a husband
condition of will be exposed, will be the sum of those to which the two con-
ditions of master and guardian are exposed. Thus far the
condition of a husband, with respect to the general outlines of it,
stands upon the same footing as that of a parent. But there are
certain reciprocal services, which being the main subject of the
matrimonial contract, constitute the essence of the two matri-
monial relations, and which neither a master nor guardian, as
such, nor a parent, at any rate, have usually been permitted to
receive. These must of course have been distinguished from the
indiscriminate train of services at large which the husband in
his character of master is empowered to exact, and of those
which in his character of guardian he is bound to render. Being
thus distinguished, the offences relative to the two conditions
have, in many instances, in as far as they have reference to these
peculiar services, acquired particular denominations. Inthefirst
place, with regard to the contract, from the celebration of which
the legal condition dates its existence. It is obvious that in
point of possibility, this contract might, on the part of either
sex, subsist with respect to several persons of the other sex at
the same time : the husband might have any number of wives :
the wife might have any number of husbands : the husband
might enter into the contract with a number of wives at the
same time : or, if with only one at a time, he might reserve to
himself a right of engaging in a similar contract with any num-
ber, or with only such or such a number of other women after-
wards, during the continuance of each former contract. This
latter accordingly is the footing upon which, as is well known,
marriageis and has been established in many extensive countries :
particularly in all those which profess the Mahometan religion.
In point of possibility, it is evident that the like liberty might be
reserved on the part of the wife : though in point of practice no

xvi.] Divfyon of Offences. 281

examples of such an arrangement seem ever to have occurred.
Which of all these arrangements is in point of utility the most
expedient, is a question which would require too much dis-
cussion to answer in the course of an analytical process like the
present, and which belongs indeed to the civil branch of legisla-
tion, rather than to the penal 1 . In Christian countries, the
solemnization of any such contract is made to exclude the
solemnization of any subsequent one duringthe continuanceof a
former : and the solemnization of any such subsequent contract
is accordingly treated as an offence, underthenameof Polygamy.
Polygamy then is at any rate, on the part of the man, a par-
ticular modification of that offence which may be styled usurpa-
tion of the condition of a husband. As to its other effects, they
will be different, according as itwas the man only, or the woman
only, or both, that were in a state of matrimony at the time of
the commission of the offence. If the man only, then his offence
involves in it pro tanto that of wrongful divestment of the con-
dition of a wife, in prejudice of his prior wife 2 . If the woman
only, then it involves in it pro tanto that of wrongful divestment
of the condition of a husband, in prejudice of her prior husband.
If both were already married, it of course involves both the
wrongful divestments which have just been mentioned. And on
the other hand also, the converse of all this may be observed
with regard to polygamy on the part of the woman. Secondly, As
the engaging not to enter into any subsequent engagement of the
like kind during the continuance of the first, is one of the con-
ditions on which the law lends its sanction to the first ; so
another is, the inserting as one of the articles of this engagement,
an undertaking not to render to, or accept from, any other
person the services which form the characteristic object of it :
the rendering or acceptance of any such services is accordingly
treated as an offence, under the name of adultery : under which
name is also comprised the offence of the stranger, who t in the

1 Sco ch. xvii. [Limit*], iv.

2 In this case also, if the woman knew not of the prior marriage, it is
besides a species of seduction ; and, in as far as it affects her, belongs to
another division of the offences of this class. Vide supra, xxxvi.

Division of Offices. [CHAP.

commission of the above offence, is the necessary accomplice.
Thirdly, Disturbing either of the parties to this engagement, in
the possession of these characteristic services, may, in like man-
ner, be distinguished from the offence of disturbing them in the
enjoyment of the miscellaneous advantages derivable from the
same condition ; and on whichever side the blame rests, whether
that of the party, or that of a third person, may be termed
wrongful withholding of connubial services. And thus we have
one-and-twenty sorts of offences to which, as the law stands at
present in Christian countries, the condition of a husband stands
exposed : viz. I. Wrongful non-investment of the condition of a
husband. 2. Wrongful interception of the condition of a hus-
band. 3. Wrongful divestment of the condition of a husband.
4. Usurpation of the condition of a husband. 5. Polygamy.
6. Wrongful investment of the condition of a husband. 7.
Wrongful abdication of the condition of a husband. 8. Wrong-
ful detrectation of the condition of a husband. 9. Wrongful
imposition of the condition of a husband. 10. Mismanagement
of marital guardianship, n. Desertion of marital guardian-
ship. 12. Dissipation in prejudice of matrimonial wardship. 13.
Peculation in prejudice of matrimonial wardship. 14. Abuse
of marital power. 15. Disturbance of marital guardianship.
16. Wrongful withholding of connubial services. 17. Adultery.
18. Breach of duty to husbands. 19. Elopement from husbands.
20. Wife-stealing. 21. Bribery in prejudice of marital guardian-
ship 1 .

Offences LIII. Next with regard to the offences to which the condition

condutfon^f 6 of a wife stands exposed. From the patterns that have been
a wife * exhibited already, the coincidences and associations that take
place between the offences that concern the existence of this con-
dition and those which concern the existence of the condition of
a husband, may easily enough be apprehended without farther

1 I. SEMI-PUBLIC offences. Falsehoods contesting, or offences against
justice destroying, the validity of the marriages of people of certain de-
scriptions : such as Jews, Quakers, Hugonots, &c. &c.

II. SELF-REGARDING offences. Improvident marriage on the part of
minors.

xvi.] Divmon of Offence*. 283

repetitions. The catalogue of those now under consideration
will be precisely the same in every article as the catalogue last
exhibited.

LIV. Thus much for the several sorts of offences relative to
the several sorts of domestic conditions : those which are consti-
tuted by such natural relations as arc contiguousbeing included.
There remain those which arc uncontiguous : of which, after
so much as has been said of the others, it will naturally be ex-
pected that some notice should be taken. These, however, do
not afford any of that matter which is necessary to constitute a
condition. In point of fact, no power seems ever to be annexed
to any of them. A grandfather, perhaps, may be called by the
law to take upon him the guardianship of his orphan grand-
son : but then the power he has belongs to him not as grand-
father, but as guardian. In point of possibility, indeed, power
might be annexed to these relations, just as it might to any
other. But still no new sort of domestic condition would result
from it : since it has been shown that there can be no others,
that, being constituted by power, shall be distinct from those
which have been already mentioned. Such as they are, how-
ever, they have this in common with the before-mentioned rela-
tions, that they are capable of importing either benefit or
burthen : they therefore stand exposed to the several offences
whereby those or any other relations are liable to be affected in
point of existence. It might be expected, therefore, that in
virtue of these offences, they should be added to the list of the
relations which are liable to be objects of delinquency. But the
fact is, that they already stand included in it : and although not
expressly named, yet as effectually as if they were. On the
one hand, it is only by affecting such or such a contiguous rela-
tion that any offence affecting uncontiguous relations can take
place. On the other hand, neither can any offence affecting the
existence of the contiguous relations be committed, without
affecting the existence of an indefinite multitude of such as are
uncontiguous. A false witness comes, and causes it to be be-
lieved that you are the son of a woman, who, in truth, is not

284 Division of Offences. [CHAP.

your mother. What follows ? An endless tribe of other false
persuasions that you are the grandson of the father and of the
mother of this supposed mother : that you are the son of some
husband of hers, or, at least, of some man with whom she has
cohabited : the grandson of his father and his mother ; and so
on : the brother of their other children, if they have any : the
brother-in-law of the husbands and wives of those children, if
married : the uncle of the children of those children : and so on.
On the other hand, that you are not the son of your real
mother, nor of your real father : that you are not the grandson
of either of your real grandfathers or grandmothers ; and so on
without end : all which persuasions result from, and are included
in, the one original false persuasion of your being the son of this
your pretended mother.

It should seem, therefore, at first sight, that none of the
offences against these uncontiguous relations could ever come
expressly into question : for by the same rule that one ought, so
it might seem ought a thousand others : the offences against the
uncontiguous being merged as it were in those which affect
the contiguous relations. So far, however, is this from being
the case, that in speaking of an offence of this stamp, it is not
uncommon to hear a great deal said of this or that uncontiguous
relationship which it affects, at the same time that no notice at
all shall be taken of any of those which are contiguous. How
happens this ? Because, to the uncontiguous relation are an-
nexed perhaps certain remarkable advantages or disadvantages,
while to all the intermediate relations none shall be annexed
which are in comparison worth noticing. Suppose Antony or
Lepidus to have contested the relationship of Octavius (after-
wards Augustus) to Caius Julius Caosar. How could it have
been done ? It could only have been by contesting, either Oc-
tavius's being the son of Atia, or Atia's being the daughter of
Julia, or Julia's being the daughter of Lucius Julius Caesar, or
Lucius Julius Caesar's being the father of Caius. But to have
been the son of Atia, or the grandson of Julia, or the great
grandson of Lucius Julius Caesar, was, in comparison, of small

xvi.] Division of Offences. 385

*

importance. Those intervening relationships were, compara-
tively speaking, of no other use to him than in virtue of their
being so many necessary links in the genealogical chain which
connected him with the sovereign of the empire.

As to the advantages and disadvantages which may happen to
be annexed to any of those uncontiguous relationships, we have
seen already that no powers over the correlative person, nor any
corresponding obligations, are of the number. Of what nature
then can they be ? They are, in truth, no other than what are
the result either of local and accidental institutions, or of some
spontaneous bias that has been taken by the moral sanction. It
would, therefore, be to little purpose to attempt tracing them
out a priori by any exhaustive process : all that can be done is,
to pick up and lay together some of the principal articles in each
catalogue by way of specimen. The advantages which a given
relationship is apt to impart, seem to be referable chiefly to the
following heads : I. Chance of succession to the property, or a
part of the property, of the correlative person. 2. Chance of
pecuniary support, to be yielded by the correlative person, either
by appointment of law, or by spontaneous donation. 3. Ac-
cession of legal rank ; including any legal privileges which may
happen to be annexed to it : such as capacity of holding such
and such beneficial offices ; exemption from such and such
burthensomc obligations ; for instance, paying taxes, serving
burthensome offices, &c. &c. 4. Accession of rank by courtesy ;
including the sort of reputation which is customarily and spon-
taneously annexed to distinguished birth and family alliance :
whereon may depend the chance of advancement in the way of
marriage, or in a thousand other ways less obvious. The dis-
advantages which a given relation is liable to impart, seem to be
referable chiefly to the following heads : I. Chance of being
obliged, either by law, or by force of the moral sanction, to yield
pecuniary support to the correlative party. 2. Loss of legal
rank : including the legal disabilities, as well as the burthensome
obligations, which the law is apt to annex, sometimes with in-
justice enough, to the lower stations. 3. Loss of rank by

286 Division of Offences. [CHAP.

courtesy : including the loss of the advantages annexed by
custom to such rank. 4. Incapacity of contracting matrimony
with the correlative person, where the supposed consanguinity
or affinity lies within the prohibited degrees l .

1 In pursuance of the plan adopted with relation to semi-public and self-
regarding offences, it may here be proper to exhibit such a catalogue as the
nature of the design will admit, of the several genera or inferior divisions
of public offences.

I. OFFENCES against the EXTERNAL SECURITY of the state, i. Treason
(in favour of foreign enemies). It may be positive or negative (negative
consisting, for example, in the not opposing the commission of positive).
2. Espionage (in favour of foreign rivals not yet enemies). 3. Injuries to
foreigners at large (including piracy). 4. Injuries to privileged foreigners
(such as ambassadors).

II. OFFENCES AGAINST JUSTICE. Offences against judicial trust : viz.
Wrongful non-investment of judicial trust, wrongful interception of judicial
trust, wrongful divestment of judicial trust, usurpation of judicial trust,
wrongful investment of judicial trust, wrongful abdication of judicial trust,
wrongful detrectation of judicial trust, wrongful imposition of judicial trust,
breach of judicial trust, abuse of judicial trust, disturbance of judicial
trust, and bribery in prejudice of judicial trust.

Breach and abuse of judicial trust may be either intentional or uninten-
tional. Intentional is culpable at any rate. Unintentional will proceed
either from inadvertence, or from mis-supposal : if the inadvertence be
coupled with heedlessness, or the mis-supposal with rashnes^it is culpable :
if not, blameless. For the particular acts by which the exercise of judicial
trust may be disturbed see B. i. tit. [Offences against j ustice]. They are too
multifarious, and too ill provided with names, to be exhibited here.

If a man fails in fulfilling the duties of this trust, and thereby comes
either to break or to abuse it, it must be through some deficiency in the
three requisite and only requisite endowments, of knowledge, inclination,
and power. [See supra, xxvii.] A deficiency in any of those points, if
any person be in fault, may proceed either from his own fault, or from the
fault of those who should act with or under him. If persons who are in
fault are persons invested with judicial trust, the offence comes under the
head of breach or abuse of trust : if other persons, under that of disturb-
ance of trust.

The ill effects of any breach, abuse, or disturbance of judicial trust, will
consist in the production of some article or articles in the list of the mis-
chiefs which it ought to be the original purpose of judicial procedure to
remedy or avert, and'of those which it ought to be the incidental purpose
of it to avoid producing. These are either primary (that is immediate) or
remote : remote are of the 2nd, 3rd, or 4th order, and so on. The primary
are those which import actual pain to persons assignable, and are therefore
mischievous in themselves : the secondary are mischievous on account of
the tendency they have to produce some article or articles in the catalogue
of those of the first order ; and are therefore mischievous in their effects.
Those of the 3rd order are mischievous only on account of the connection
they have in the way of productive tendency, as before, with those of the
2nd order : and so on.

Primary inconveniences, which it ought to be the object of procedure to

xvi.] Division of Offences. 287

LV. We come now to civil conditions : these, it may well be Civil con-
imagined, may be infinitely various : as various as the acts which

provide against, are, i. The continuance of the individual offence itself,
and thereby the increase as well as continuance of the mischief of it. 2.
The continuance of the whole mischief of the individual offence. 3. The
continuance of a part of the mischief of the individual offence. 4. Total
want of amends on the part of persons injured by the offence. 5. Partial
want of amends on the part of persons injured by the offence. 6. Super-
fluous punishment of delinquents. 7. Unjust punishment of persons
accused. 8. Unnecessary labour, expense, or other suffering or danger, on
the part of superior judicial officers. 9. Unnecessary labour, expense, or
other suffering or danger, on the part of ministerial or other subordinate
judicial officers. 10. Unnecessary labour, expense, or other suffering or
danger, on the part of persons whose co-operation is requisite pro re nat't,
in order to make up the necessary complement of knowledge and power
on the part of judicial officers, who are such by profession. 1 1. Unneces-
sary labour, expense, or other suffering or danger, on the part of persons at
large, coming under the sphere of the operations of the persons above-
mentioned.

Secondary inconveniences are, in the consultative, pre-mterpretative (or
purely civil) branch of procedure, i. Misinterpretation or adjudication.
In the executive (including the penal) branch. 2. Total impunity of de-
linquents : (as favouring the production of other offences of the like
nature). 3. Partial impunity of delinquents. 4. Application of punish-
ment improper in specie, though perhaps not in degree (this lessening the
beneficial efficacy of the quantity employed). 5. Uneconomical applica-
tion of punishment, though proper, perhaps, as well in specie as in degree.
6. Unnecessary pecuniary expense on the part of the state.

Inconveniences of the 3rd order are, i. Unnecessary delay. 2. Unneces-
sary intricacy.

Inconveniences of the 4th order are, i. Breach, 2. Abuse, 3. Disturb-
ance, of judicial trust, as above : viz. in as far as these offences are pre-
liminary to and distinct from those of the 2nd and 3rd orders.

Inconveniences of the 5th order are, Breach of the several regulations of
procedure, or other regulations, made in the view of obviating the incon-
veniences above enumerated : viz. if preliminary and distinct, as before.

III. OFFENCES against the PREVENTIVE branch of the POLICE. i.
Offences against phthano-paranomic trust : (<j>0avu , to prevent ; irapavofjita,
an offence). 2. Offences against pJiiJiano-symphoric trust : (crvptyopa, a
calamity). The two trusts may be termed by the common appellation of
prophylactic : (irpo, beforehand, and </>v\aTTo>, to guard against).

IV. OFFENCES against the PUBLIC FORCE, i . Oif ences against military
trust, corresponding to those against judicial trust. Military desertion is
a breach of military duty, or of military trust. Favouring desertion is a
disturbance of it. 2. Offences against that branch of public trust which
consists in the management of the several sorts of things appropriated to
the purposes of war : such as arsenals, fortifications, dock-yards, ships of
war, artillery, ammunition, military magazines, and so forth. It might be
termed polemo-tamieutic : from inSAc/ios, war ; and ran'icvs, a steward l .

i A number of different branches of public trust, none of which have yet been provided
with appellatives, have here been brought to view : which then were best ? to coin new names
for them out of the Greek ; or, instead of a word to make use of a whole sentence ? In

$88 Division of Offences. [CHAP.

If
a man may be cither commanded or allowed, whether for his

own benefit, or that of others, to abstain from or to perform.

V. OFFENCES against the POSITIVE INCREASE of the NATIONAL FELICITY.
I. Offences against cpistemo-threptic trust : (c/nu 7-17^77, knowledge ; and
rpefw, to nourish or promote). 2. Offences against cupwdagogic trust :
(v 9 well ; and iraiSaycayeeu, to educate). 3. Offences against noso-comial
trust : (vuaos, a disease ; and *0;<X to take care of). 4. Offences against
moro-comial trust: (popos, an insane person). 5. Offences against ptocho-
comial trust : (TTTWX'> the poor). 6. Offences against antemblctic trust :
(dvTnl3d\\u, to bestow in reparation of a loss). 7. Offences against kcdo-
nnrchic trust: (f)8ovai 9 pleasures; and iipx^ai, to preside over). The
above are examples of the principal establishments which should or might
be set on foot for the purpose of making, in so many different ways, a
positive addition to the stock of national felicity. To exhibit an exhaustive
analysis of the possible total of these establishments would not be a very
easy task : nor on the present occasion is it a necessary one : for be they
of what nature and in what number they may, the offences to which they
stand exposed will, in as far as they are offences against trust, be in point
of denomination the same : and as to what turns upon the particular nature
of each trust, they will be of too local a nature to come within the present
plan.

All these trusts might be comprised under some such general name as
that of agatho-poieutic trust : (ayaOonoUoj, to do good to any one).

VI. OFFENCES against the PUBLIC WEALTH, i. Non-payment of for-
feitures. 2. Non-payment of taxes, including smuggling. 3. Breach of
the several regulations made to prevent the evasion of taxes. 4. Offences
against fiscal trust : the same as offences against judicial and military
trusts. Offences against the original revenue, not accruing either from
taxes or forfeitures, such as that arising from the public demesnes, stand
upon the same footing as offences against private property. 5. Offences
against demos io-tamieutic trust : (drjuuo-ia, things belonging to the public ;
and rafjiievs, a steward) viz. against that trust, of which the object is to
apply to their several destinations such articles of the public wealth as arc
provided for the indiscriminate accommodation of individuals : such as
public roads and waters, public harbours, post-offices, and packet boats, and
the stock belonging to them; market-places, and other such public build-
ings; race-grounds, public walks, and so forth. Offences of this description
will be apt to coincide with offences against agatho-poieutic trust as above,
or with offences against eitto-pfr4ft'0tic trust hereafter mentioned, according
as the benefit in question is considered in itself, or as resulting from tho
application of such or such a branch or portion of the public wealth.

VII. OFFENCES against POPULATION, i. Emigration. 2. Suicide. 3.
Procurement of impotence or barrenness. 4. Abortion. 5. Unprolific
coition. 6. Celibacy.

VIII. OFFENCES against the NATIONAL WEALTH. i. Idleness. 2.
Breach of the regulations made in the view of preventing the application
of industry to purposes less profitable, in prejudice of purposes more pro-
fitable. 3. Offences against ethno-plutistic trust : (tOvos, the nation at
large ; irAotm'fcw, to enrich).

English, and in French, there is no other alternative; no more than in any of tho other
southern languages. It rests with the reader to determine.

xvi.] DivisicM of Offences. 389

As many different denominations as there are of persons distin-
guished with a view to such commands and allowances (those

IX. OFFENCES against the SOVEREIGNTY, i . Offences against sovereign
trust : corresponding to those against judicial, pro phy lactic, military, and
fiscal trusts. Offensive rebellion includes wrongful interception, wrongful
divestment, usurpation, and wrongful investment, of sovereign trust, with
the offences accessory thereto. Where the trust is in a single person,
wrongful interception, wrongful divestment, usurpation, and wrongful in-
vestment cannot, any of them, be committed without rebellion : abdication
and detrectation can never be deemed wrongful : breach and abuse of
sovereign trust can scarcely be punished : no more can bribe-taking :
wrongful imposition of it is scarce practicable. When the sovereignty is
shared among a number, wrongful interception, wrongful divestment,
usurpation, and wrongful in vestment, may becommitted without rebellion:
none of the offences against this trust are impracticable : nor is there any
of them but might be punished. Defensive rebellion is disturbance of this
trust. Political tumults, political defamation, and political vilification, are
offences accessory to such disturbance.

Sovereign power (which, upon the principle of utility, can never be other
than fiduciary) is exercised either by rule or without rule : in the latter
case it may be termed autocratic : in the former case it is divided into two
branches, the legislative and the executive l . In either case, where the
designation of the person by whom the power is to be possessed, depends
not solely upon mere physical events, such as that of natural succession,
but in any sort upon the will of another person, the latter possesses an
invcstitive power, or right of investiture, with regard to the power in ques-
tion : in like manner may any person also possess a direstitive power. The
powers above enumerated, such as judicial power, military power, and so
forth, may therefore be exercisable by a man, either directly, proprii
manu ; or indirectly, manu aliend a . Power to be exercised manu aliend
is investitive, which may or may not be accompanied by dive&titive. Of
sovereign power, whether autocratic, legislative, or executive, the several
public trusts above mentioned form so many subordinate branches. Any
of these powers may be placed, either, i. in an individual; or, 2. in a body
politic : who may be either supreme or subordinate. Subordination on the
part of a magistrate may be established, i . By the person's being punish-
able : 2. By his being removable : 3. By the orders being reversible.

X. OFFENCES against RELIGION, i. Offences tending to weaken the
force of the religious sanction : including blasphemy and profaneness. 2.
Offences tending to misapply the force of the religious sanction : including
false prophecies, and other pretended revelations ; also heresy, where the
doctrine broached is pernicious to the tern} oral interests of the community.
3. Offences against religious trust, where any such is thought fit to be
established.

XI. OFFENCES against the NATIONAL INTEREST in general, i. Immoral
publications. 2. Offences against tho trust of an ambassador ; or, as it
might bo termed, presbeutic trust. 3. Offences against the trust of a
privy-counsellor ; or, as it might bo termed, symbovleutic trust. 4. In

1 See cK xrii. [Limits], i. : .

2 In the former case, the power might he termed in one won), autochirous ; in the latter
heterochirous . (avm, a man'* own ; xetp, a hand ; crtpot, another's).

BBNTIIAM TT

29 Division of Offences. [CHAP.

denominations only excepted which relate to the conditions
above spoken of under the name of domestic ones) so many civil
conditions one might enumerate. Means however, more or less
explicit, may be found out of circumscribing their infinitude.

What the materials are, if so they may be called, of which
conditions, or any other kind of legal possession, can be made
up, we have already seen : beneficial powers, fiduciary powers,
beneficial rights, fiduciary rights, relative duties, absolute duties.
But as many conditions as import a power or right of the
fiduciary kind, as possessed by the person whose condition is
in question, belong to the head of trusts. The catalogue of
the offences to which these conditions are exposed, coincides
therefore exactly with the catalogue of offences against trust :
under which head they have been considered in a general point
of view under the head of offences against trust : and such of
them as are of a domestic nature, in a more particular manner
in the character of offences against the several domestic condi-
tions. Conditions constituted by such duties of the relative
kind, as have for their counterparts trusts constituted by fidu-
ciary powers, as well as rights on the side of the correlative
party, and those of a private nature, have also been already dis-
cussed under the appellation of domestic conditions. The same
observation maybe applied to the conditions constituted by such
powers of the beneficial kind over persons as are of a private
nature : as also to the subordinate correlative conditions con-
stituted by the duties corresponding to those rights and powers.
As to absolute duties, there is no instance of a condition thus
created, of which the institution is upon the principle of utility
to be justified ; unless the several religious conditions of the
monastic kind should be allowed of as examples. There remain,
as the only materials out of which the conditions which yet re-
main to be considered can be composed, conditions constituted
by beneficial powers over things ; conditions constituted by

pure or mixed monarchies, prodigality on the part of persons who are about
the person of the sovereign, though without being invested with any specific
trust. 5. Excessive gaming on the part of the same persons. 6. Taking
presents from rival powers without leave.

xvi.] Division of Offences. 391

beneficial rights to things (that is, rights to powers over things)
or by rights to those rights, and so on ; conditions constituted
by rights to services ; and conditions constituted by the duties
corresponding to those respective rights. Out of these are to be
taken those of which the materials are the ingredients of the
several modifications of property, the several conditions of pro-
prietorship. These are the conditions, if such for a moment
they may be styled, which having but here and there any specific
names, are not commonly considered on the footing of condi-
tions : so that the acts which, if such conditions were recognised,
might be considered as offences against those conditions, are not
wont to be considered in any other light than that of offences
against property.

Now the case is, as hath been already intimated \ that of
these civil conditions, those which are wont to be considered
under that name, are not distinguished by any uniform and
explicit line from those of which the materials are wont to be
carried to the head of property : a set of rights shall, in one
instance, be considered as constituting an article of property
rather than a condition : while, in another instance, a set of
rights of the same stamp is considered as constituting rather a
condition than an article of property. This will probably be
found to be the case in all languages : and the usage is dif-
ferent again in one language from what it is in another. From
these causes it seems to be impracticable to subject the class of
civil conditions to any exhaustive method : so that for making
a complete collection of them there seems to be no other ex-
pedient than that of searching the language through for them,
and taking them as they come. To exemplify this observation,
it may be of use to lay open the structure as it were of two or
three of the principal sorts or classes of conditions, comparing
them with two or three articles of property which appear to
be nearly of the same complexion : by this means the nature
and generation, if one may so call it, of both these classes of
ideal objects may be the more clearly understood.

1 Supra, xvii.

T7 O

292 Division of Offices. [CHAP.

The several sorts of civil conditions that are not fiduciary may
all, or at least the greater part of them, be comprehended under
the head of rank, or that of profession ; the latter word being
taken in its most extensive sense, so as to include not only what
are called the liberal professions, but those also which are exer-
cised by the several sorts of traders, artists, manufacturers, and
other persons of whatsoever station, who are in the way of
making a profit by their labour. Among ranks then, as well as
professions, let us, for the sake of perspicuity, take for examples
such articles as stand the clearest from any mixture of cither
fiduciary or beneficial power. The rank of knighthood is con-
stituted, how ? by prohibiting all other persons from performing
certain acts, the performance of which is the symbol of the
order, at the same time that the knight in question, and his
companions, are permitted : for instance, to wear a ribbon of a
certain colour in a certain manner : to call himself by a certain
title : to use an armorial seal with a certain mark on it. By
laying all persons but the knight under this prohibition, the
law subjects them to a set of duties : and since from the dis-
charge of these duties a benefit results to the person in whose
favour they are created, to wit, the benefit of enjoying such a
share of extraordinary reputation and respect as men are wont
to yield to a person thus distinguished, to discharge them is to
render him a service : and the duty being a duty of the negative
class, a duty consisting in the performance of certain acts of the
negative kind 1 , the service is what may be called a service of
forbearance. It appears then, that to generate this condition
there must be two sorts of services : that which is the imme-
diate cause of it, a service of the negative kind, to be rendered
by the community at large : that which is the cause again of
this service, a service of the positive kind, to be rendered by
the law.

The condition of a professional man stands upon a narrower
footing. To constitute this condition there needs nothing more
than a permission given him on the part of the legislator to
1 Sec ch. vii. [Actions] viii.

xvi.] Divijion of Offences. 293

perform those acts, in the performance of which consists the
exercise of his profession : to give or sell his advice or assistance
in matters of law or physic : to give or sell his services as em-
ployed in the executing or overseeing of a manufacture or piece
of work of such or such a kind : to sell a commodity of such or
such a sort. Here then we see there is but one sort of service
requisite ; a service which may be merely of the negative kind,
to be rendered by the law : the service of permitting him to
exercise his profession : a service which, if there has been no
prohibition laid on before, is rendered by simply forbearing to
prohibit him.

Now the ideal objects, which in the cases above specified are
said to be conferred upon a man by the services that are re-
spectively in question, are in both cases not articles of property
but conditions. By such a behaviour on the part of the law,
as shall be the reverse of that whereby they were respectively
produced, a man may be made to forfeit them : and what he is
then said to forfeit is in neither case his property ; but in one
case, his rank or dignity : in the other case, his trade or his
profession : and in both cases, his condition.

Other cases there are again in which the law, by a process of
the same sort with that by which it constituted the former of
the two above-mentioned conditions, confers on him an ideal
object, which the laws of language have placed under the head
of property. The law permits a man to sell books : that is, all
sorts of books in general. Thus far all that it has done is to
invest him with a condition : and this condition he would
equally possess, although everybody else in the world were to
sell books likewise. Let the law now take an active part in his
favour, and prohibit all other persons from selling books of a
certain description, he remaining at liberty to sell them as
before. It therefore confers on him a sort of exclusive privilege
or monopoly, which is called a copy-right. But by investing
him with this right, it is not said to invest him with any new
sort of condition : what it invests him with is spoken of as
an article of property ; to wit, of that sort of property which is

294 Division of Offences. [CHAP.

termed incorporeal 1 : and so on in the case of an engraving, a
mechanical engine, a medicine ; or, in short, of a saleable article
of any other sort. Yet when it gave him an exclusive right of
wearing a particular sort of ribbon, the object which it was then
considered as conferring on him was not an article of property
but a condition.

By forbearing to subject you to certain disadvantages, to
which it subjects an alien, the law confers on you the condition
of a natural-born subject : by subjecting him to them, it imposes
on him the condition of an alien : by conferring on you certain
privileges or rights, which it denies to a roturier, the law con-
fers on you the condition of a gentiJJwmme ; by forbearing to
confer on him those privileges, it imposes on him the condition
of a roturier 2 . The rights, out of which the two advantageous
conditions here exemplified are both of them as it were com-
posed, have for their counterpart a sort of services of forbear-
ance, rendered, as we have seen, not by private individuals, but
by the law itself. As to the duties which it creates in rendering
you these services, they are to be considered as duties imposed
by the legislator on the ministers of justice.

It may be observed, with regard to the greater part of the
conditions here comprised under the general appellation of civil,
that the relations corresponding to those by which they are re-
spectively constituted, are not provided with appellatives. The
relation which has a name, is that which is borne by the party
favoured to the party bound : that which is borne by the party
bound to the party favoured has not any. This is a circum-
stance that may help to distinguish them from those conditions
which we have termed domestic. In the domestic conditions, if
on the one side the party to whom the power is given is called a
master ; on the other side, the party over whom that power is

1 The reason probably why an object of the sort here in question is re-
ferred to the head of property, is, that the chief value of it arises from its
being capable of being made a source of property in the more ordinary
acceptations of the word ; that is, of money, consumable commodities, and
so forth.

2 The conditions themselves having nothing that corresponds to them in
England, it was necessary to make use of foreign terms.

xvi.] Division of Offences. 295

given, the party who is the object of that power, is termed a
servant. In the civil conditions this is not the case. On the
one side, a man, in virtue of certain services of forbearance,
which the rest of the community are bound to render him, is
denominated a knight of such or such an order : but on the
other side, these services do not bestow any particular denomi-
nation on the persons from whom such services are due. Another
man, in virtue of the legislator's rendering that sort of negative
service which consists in the not prohibiting him from exercising
a trade, invests him at his option with the condition of a trader :
it accordingly denominates him a farmer, a baker, a weaver, and
so on : but the ministers of the law do not, in virtue of their
rendering the man this sort of negative service, acquire for
themselves any particular name. Suppose even that the trade
you have the right of exercising happens to be the object of a
monopoly, and that the legislator, besides rendering you himself
those services which you derive from the permission he bestows
on you, obliges other persons to render you those farther services
which you receive from their forbearing to follow the same
trade ; yet neither do they, in virtue of their being thus bound,
acquire any particular name.

After what has been said of the nature of the several sorts of
civil conditions that have names, the offences to which they are
exposed may, without much difficulty, be imagined. Taken by
itself, every condition which is thus constituted by a permission
granted to the possessor, is of course of a beneficial nature : it
is, therefore, exposed to all those offences to which the possession
of a benefit is exposed. But either on account of a man's being
obliged to persevere when once engaged in it, or on account of
such other obligations as may stand annexed to the possession
of it, or on account of the comparative degree of disrepute
which may stand annexed to it by the moral sanction, it may
by accident be a burthen : it is on this account liable to stand
exposed to the offences to which, as hath been seen, every thing
that partakes of the nature of a burthen stands exposed. As to
any offences which may concern the exercise of the functions

296 Division of Offences. [CHAP.

belonging to it, if it happens to have any duties annexed to it,
such as those, for instance, which are constituted by regulations
touching the exercise of a trade, it will stand exposed to so
many breaches of duty ; and lastly, whatsoever are the func-
tions belonging to it, it will stand exposed at any rate to
disturbance.

In the forming however of the catalogue of these offences,
exactness is of the less consequence, inasmuch as an act, if it
should happen not to be comprised in this catalogue, and yot is
in any respect of a pernicious nature, will be sure to be found
in some other division of the system of offences : if a baker sells
bad bread for the price of good, it is a kind of fraud upon the
buyer ; and perhaps an injury of the simple corporal kind done
to the health of an individual, or a neighbourhood : if a clothier
sells bad cloth for good at home, it is a fraud ; if to foreigners
abroad, it may, over and above the fraud put upon the foreign
purchaser, have pernicious effects perhaps in the prosperity
of the trade at home, and become thereby an offence against the
national wealth. So again with regard to disturbance : if a man
be disturbed in the exercise of his trade, the offence will pro-
bably be a wrongful interception of the profit he might be pre-
sumed to have been in a way to make by it : and were it even
to appear in any case that a man exercised a trade, or what is
less unlikely, a liberal profession, without having profit in his
view, the offence will still be reducible to the head of simple
injurious restrainment, or simple injurious compulsion.

4. Advantages of the present method.

General idea LVI. A few words, for the purpose of giving a general view

method here of the method of division here pursued, and of the advantages

pursu * which it possesses, may have their use. The whole system of

offences, we may observe, is branched out into five classes. In

the three first, the subordinate divisions are taken from the same

source ; viz. from the consideration of the different points, in

respect whereof the interest of an individual is exposed to suffer.

By this uniformity, a considerable degree of light seems to be

xvi.] Division of Offences. 297

thrown upon the whole system ; particularly upon the offences
that come under the third class : objects which have never
hitherto been brought into any sort of order. With regard to
the fourth class, in settling the precedence between its several
subordinate divisions, it seemed most natural and satisfactory to
place those first, the connection whereof with the welfare of in-
dividuals seemed mostobviousandimmediate. The mischievous
effects of those offences, which tend in an immediate way to
deprive individuals of the protection provided for them against
the attacks of one another, and of those which tend to bring
down upon them the attacks of foreign assailants, seem alike
obvious and palpable. The mischievous quality of such as tend
to weaken the force that is provided to combat those attacks,
but particularly the latter, though evident enough, is one link
farther off in the chain of causes and effects. The ill effects of
such offences as are of disservice only by diminishing the par-
ticular fund from whence that force is to be extracted, such
effects, I say, though indisputable, are still more distant and out
of sight. The same thing may be observed with regard to such
as are mischievous only by affecting the universal fund. Offences
against the sovereignty in general would not be mischievous,
if offences of the several descriptions preceding were not mis-
chievous. Nor in a temporal view are offences against religion
mischievous, except in as far as, by removing, or weakening, or
misapplying one of the three great incentives to virtue, and
checks to vice, they tend to open the door to the several mis-
chiefs, which it is the nature of all those other offences to pro-
duce. As to the fifth class, this, as hath already been observed,
exhibits, at first view, an irregularity, which however seems to
be unavoidable. But this irregularity is presently corrected,
when the analysis returns back, as it does after a step or two,
into the path from which the tyranny of language had forced
it a while to deviate.

It was necessary that it should have two purposes in view :
the one, to exhibit, upon a scale more or less minute, a syste-
matical enumeration of the several possible modifications ol

Division of Offences. [CHAP.

delinquency, denominated or undenorainated ; the other, to find
places in the list for such names of offences as were in current
use : for the first purpose, nature was to set the law ; for the
other, custom. Had the nature of the things themselves been
the only guide, every such difference in the manner of perpetra-
tion, and such only, should have served as a ground for a different
denomination, as was attended with a difference inpointof effect.
This however of itself would never have been sufficient ; for as
on one hand the new language, which it would have been neces-
sary to invent, would have been uncouth, and in a manner unin-
telligible : so on the other hand the names, which were before
in current use, and which, in spite of all systems, good or bad,
must have remained in current use, would have continued unex-
plained. To have adhered exclusively to the current language,
would have been as bad on the other side ; for in that case the
catalogue of offences, when compared to that of the mischiefs
that are capable of being produced, would have been altogether
broken and uncomplcte.

To reconcile these two objects, in as far as they seemed to be
reconcilable, the following course has therefore been pursued.
The logical whole, constituted by the sum total of possible offences,
has been bisected in as many different directions as were neces-
sary, and the process in each direction carried down to that
stage at which the particular ideas thus divided found names in
current use in readiness to receive them. At that period I have
stopped ; leaving any minuter distinctions to be enumerated in
the body of the work, as so many species of the genus character-
ised by such or such a name. If in the course of any such
process I came to a mode of conduct which, though it required to
be taken notice of, and perhaps had actually been taken notice
of, under all laws, in the character of an offence, had hitherto
been expressed under different laws, by different circumlocutions,
without ever having received any name capable of occupying the
place of a substantive in a sentence, I have frequently ventured
so far as to fabricate a new name for it, such an one as the idiom
of the language, and the acquaintance I happened to have with

xvi.] Division of Offences. 299

it, would admit of. These names consisting in most instances,
and that unavoidably, of two or three words brought together,
in a language too which admits not, like the German and the
Greek, of their being melted into one, can never be upon a par,
in point of commodiousness, with those univocal appellatives
which make part of the established stock.

In the choice of names in current use, care has been taken to
avoid all such as have been grounded on local distinctions, ill
founded perhaps in the nation in which they received their
birth, and at any rate not applicable to the circumstances of
other countries.

The analysis, as far as it goes, is as applicable to the legal con-
cerns of one country as of another : and where, if it had descended
into further details, it would have ceased to be so, there I have
taken care always to stop : and thence it is that it has come to
be so much more particular in the class of offences against indi-
viduals, than in any of the other classes. One use then of this
arrangement, if it should be found to have been properly con-
ducted, will be its serving to point out in what it is that the
legal interests of all countries agree, and in what it is that they
are liable to differ : how far a rule that is proper for one, will
serve, and how far it will not serve, for another. That the legal
interests of different ages a nd countries ha ve nothing in common ,
and that they have every thing, are suppositions equally distant
from the truth \

LVII. A natural method, such as it hath been here attempted its advan-

tagcs.

to exhibit, seems to possess four capital advantages; not to men- i. it is
tion others of inferior note. In the first place, it affords suchfo^theap-
assistanceto the apprehension and to the memory, as those facul- amUhe
ties would in vain look for in any technical arrangement 2 . That mem ry '
arrangement of the objects of any science may, it should seem,

1 The above hints are offered to tha consideration of the few who may
be disposed to bend their minds to disquisitions of this uninviting nature :
to sift the matter to the bottom, and engage in the details of illustration,
would require more room than could in this place be consistently allowed.

a See Fragment on Government, pref. p. xlv. edit. 1776. pref. p. xlvii.
edit. 1823.

300 Division of Offences. [CHAP.

be termed a natural one, which takes such properties to charac-
terise them by, as men in general are, by the common constitu-
tion of man's nature, independently of any accidental impressions
they may have received from the influence of any local or other
particular causes, accustomed to attend to : such, in a word, as
naturally, that is readily and at first sight, engage, and firmly
fix, the attention of any one to whom they have once been
pointed out. Now by what other means should an object engage
or fix a man's attention, unless by interesting him ? and what
circumstance belonging to any action can be more interesting,
or rather what other circumstance belonging to it can be at all
interesting to him, than that of the influence it promises to have
on his own happiness, and the happiness of those who are about
him ? By what other mark then should he more easily find the
place which any offence occupies in the system, or by what other
clue should he more readily recall it ?

-2. it gives LVIII. In the next place, it not only gives at first glance a
general pro- general intimation of the nature of each division of offences, in
as far as that nature is determined by some one characteristic
property, but it gives room for a number of general propositions
to be formed concerning the particular offences that come under
that division, in such manner as to exhibit a variety of other
properties that may belong to them in common . It gives room,
therefore, for the framing of a number of propositions concern-
ing them, which, though very general, because predicated of a
great number of articles, shall be as generally true l .

1 Imagine what a condition a science must bo in, when as yet there shall
bo no such thing as forming any extensive proposition relative to it, that
shall be at the same time a true one : where, if the proposition shall be
true of some of the particulars contained under it, it shall be false with
regard to others. What a state would botany, for example, be in, if the
classes were so contrived, that no common characters could bo found for
them? Yet in this state, and no better, seems every system of penal law
to be, authoritative or unauthoritativo, that has ever yet appeared. Try if
it be otherwise, for instance, with the ddicta private et publica, and with
the publica ordinaria, and publica extra-ordinaria of the Roman law l .
All this for want of method : and hence the necessity of endeavouring to
strike out a new one.

1 See Ileinecc, Elern. p. vii. 79, 80.

xvi.] Division of Offences. 301

LIX. In the third place, it is so contrived, that the very place 3. it points
which any offence is made to occupy, suggests the reason of its reason of the
being put there. It serves to indicate not only that such and such aw '
acts are made offences, but why they ought to be. By this means,
whileitaddressesitselftotheunderstanding,itrecommendsitself
in some measure to the affections. By the intimation it gives of
the nature and tendency of each obnoxious act, it accounts for,
and in some measure vindicates, the treatment which it may be
thought proper to bestow upon that act in the way of punish-
ment. To the subject then it is a kind of perpetual apology :
showing the necessity of every defalcation, which, for the se-
curity and prosperity of each individual, it is requisite to make
from the liberty of every other. To the legislator it is a kind
of perpetual lesson : serving at once as a corrective to his pre-
judices, and as a check upon his passions. Is there a mischief
which has escaped him ? in a natural arrangement, if at the
same time an exhaustive one, he cannot fail to find it. Is he
tempted ever to force innocence within the pale of guilt ? the
difficulty of finding a place for it advertises him of his error.
Such are the uses of a map of universal delinquency, laid down
upon the principle of utility : such the advantages, which the
legislator as well as the subject may derive from it. Abide by
it, and every thing that is arbitrary in legislation vanishes. An
evil-intentioned or prejudiced legislator durst not look it in the
face. He would proscribe it, and with reason : it would be a
satire on his laws.

LX. In the fourth place, a natural arrangement, governed as -4. it is
it is by a principle which is recognised by all men, will

Nor is this want of method to be wondered at. A science so new as
that of penal legislation, could hardly have been in any better state. Till
objects are distinguished, they cannot be arranged. It is thus that truth
and order go on hand in hand. It is only in proportion as the former is
discovered, that the latter can be improved. Before a certain order is
established, truth can be but imperfectly announced : but until a certain
proportion of truth has been developed and brought to light, that order
cannot be established. The discovery of truth leads to the establishment
of order : and the establishment of order fixes and propagates the discovery
of truth.

Division of Offences.

[CHAP.

laws of all alike for the jurisprudence of all nations. In a system of pro-
posed law, framed in pursuance of such a method, the language
will serve as a glossary by which all systems of positive law
might be explained, while the matter serves as a standard by
which they might be tried. Thiu illustrated, the practice of
every nation might be a lesson to every other : and mankind
might carry on a mutual interchange of experiences and im-
provements as easily in this as in every other walk of science. If
any one of these objects should in any degree be attained, the
labour of this analysis, severe as it has been, will not have been
thrown away.

5. Characters of the five classes.

characters LXI. It has been mentioned 1 as an advantage possessed by
classes, how this method, and not possessed by any other, that the objects
from the comprised under it are cast into groups, to which a variety of
method. propositions may be applied in common. A collection of these
propositions, as applied to the several classes, may be considered
as exhibiting the distinctive characters of each class. So many
of these propositions as can be applied to the offences belonging
to any given class, so many properties are they found to have
in common : so many of these common properties as may
respectively be attributed to them, so many properties may be
set down to serve as characters of the class. A collection of
these characters it may here be proper to exhibit. The more of
them we can bring together, the more clearly and fully will the
nature of the several classes, and of the offences they are com-
posed of, be understood.

LXII. Characters of Class I ; composed of PRIVATE offences,
or offences against assignable individuals.

1. When arrived at their last stage (the stage of consumma-
tion 2 ) they produce, all of them, a primary mischief as well
as a secondary 3 .

2. The individuals whom they affect in the first instance 4

Characters
of Class I.

1 Supra, Iviii.

8 See ch. xii. [Consequences] iii.

That

r ii. [Actions] xiv.
is, by their primi

primary mischief.

xvi.] Division of Offences. 303

are constantly assignable. This extends to all ; to attempts and
preparations, as well as to such as have arrived at the stage of
consummation *.

3. Consequently they admit of compensation 2 : in which they
differ from the offences of all the other classes, as such.

4. They admit 3 also of retaliation*; in which also they
differ from the offences of all the other classes.

5. There is always some person who has a natural and pe-
culiar interest to prosecute them. In this they differ from
self -regarding offences : also from semi-public and public ones ;
except in as far as the two latter may chance to involve a private
mischief.

6. The mischief they produce is obvious : more so than that
of semi-public offences : and still more so than that of self-
regarding ones, or even public.

7. They are every where, and must ever be, obnoxious to the
censure of the world : more so than semi-public offences as such ;
and still more so than public ones.

8. They are more constantly obnoxious to the censure of the
world than self-regarding offences : and would be so universally,
were it not for the influence of the two false principles ; the
principle of asceticism, and the principle of antipathy 5 .

9. They are less apt than semi-public and public offences to
require different descriptions 6 in different states and countries :
in which respect they are much upon a par with self -regarding
ones.

10. By certain circumstances of aggravation, they are liable

1 See supra, xxxi note, and B. I. tit. [Accessory offences].

* See ch. xiii. [Cases unmeet] ii. note.

8 I mean, that retaliation is capable of being applied in the cases in
question ; not that it ought always to be employed. Nor is it capable of
being applied in every individual instance of each offence, but only in some
individual instance of each species of offence.

4 See ch. xv. [Properties] viii.

Ch. ii. [Principles adverse].

6 It seems to be from their possessing these three last properties, that
the custom has arisen of speaking of them, or at least of many of them,
under the name of offences against the law of nature : a vague expresvsion,
and productive of a multitude of inconveniences. See ch. ii. [Principles
adverse] xiv. note.

304 Division of Offences. [CHAP.

t

to be transformed into semi-public offences ; and by certain
others, into public.

11. There can be no ground for punishing them, until they
can be proved to have occasioned, or to be about to occasion,
some particular mischief to some particular individual. In this
they differ from semi-public offences, and from public.

12. In slight cases, compensation given to the individual
affected by them may be a sufficient ground for remitting
punishment : for if the primary mischief has not been sufficient
to produce any alarm, the whole of the mischief may be cured
by compensation. In this also they differ from semi-public
offences, and from public ones.

Characters LXIII. Characters of Class 2 ; composed of SEMI-PUBLIC
offences, or offences affecting a whole subordinate class of
persons.

1. As such, they produce no primary mischief. The mischief
they produce consists of one or other or both branches of the
secondary mischief produced by offences against individuals,
without the primary.

2. In as far as they are to be considered as belonging to this
class, the persons whom they affect in the first instance are not
individually assignable.

3. They are apt, however, to involve or terminate in some
primary mischief of the first order ; which when they do, they
advance into the first class, and become private offences.

4. They admit not, as such, of compensation,

5. Nor of retaliation.

6. As such, there is never any one particular individual whose
exclusive interest it is to prosecute them : a circle of persons
may, however, always be marked out, within which may be
found some who have a greater interest to prosecute than any
who are out of that circle have.

7. The mischief they produce is in general pretty obvious :
not so much so indeed as that of private offences, but more
so upon the whole than that of self-regarding and public ones.

8. They are rather less obnoxious to the censure of the world

xvi.] Division of Offences. 305

/
than private offences ; but they are more so than public ones :

they would also be more so than self -regarding ones, were it not
for the influence of the two false principles, the principle of
sympathy and antipathy, and that of asceticism.

9. They are more apt than private and self -regarding offences
to require different descriptions in different countries : but less
so than public ones.

10. Theremay beground for punishing them before they have
been proved to have occasioned, or to be about to occasion, mis-
chief to any particular individual ; which is not the case with
private offences.

11. In no cases can satisfaction given to any particular indi-
vidual affected by them be a sufficient ground for remitting
punishment : for by such satisfaction it is but a part of the
mischief of them that is cured. In this they differ from private
offences ; but agree with public.

LXIV. Characters of Class 3 ; consisting of SELF REGARDING characters
offences : offences against one'* self.

1. In individual instances it will often be questionable,
whether they are productive of any primary * mischief at all :
secondary, they produce none.

2. They affect not any other individuals, assignable or not
assignable, except in as far as they affect the offender himself ;
unless by possibility in particular cases ; and in a very slight
and distant manner the whole state.

3. They admit not, therefore, of compensation.

4. Nor of retaliation.

5. No person has naturally any peculiar interest to prosecute
them : except in as far as in virtue of some connection he may
have with the offender, either in point of sympathy or of interest 2 ,
a mischief of the derivative kind 3 may happen to devolve upon
him 4 .

1 Because the person, who in general is most likely to be sensible to the
mischief (if there is any) of any offence, viz. the person whom it most
affects, shows by his conduct that he is not sensible of it.

a See ch. vi. [Sensibility] xxv. xxvi. 8 See ch. xii. [Consequences] iv.

4 Among the offences, however, which belong to this class there are

BENTHAII X

306 Division of Offences. [CHAP.

6. The mischief they produce is apt to be unobvious and in
general more questionable than that of any of the other classes 1 .

7. They are however apt, many of them, to be more obnoxious
to the censure of the world than public offences ; owing to the
influence of the two false principles ; the principle of asceticism,
and the principle of antipathy. Some of them more even than
semi-public, or even than private offence

8. They are less apt than offences of any other class to require
different descriptions in different states and countries 2 .

9. Among the inducements 3 to punish them, antipathy
against the offender is apt to have a greater share than
sympathy for the public.

10. The best plea for punishing them is founded on a faint
probability there may be of their being productive of a mischief,
which, if real, will place them in the class of public ones : chiefly
in those divisions of it which are composed of offences against
population, and offences against the national wealth.

Characters LXV. Characters of Class 4 ; consisting of PUBLIC offences, or
o ass . offences against the state in general.

1. As such, they produce not any primary mischief ; and the
secondary mischief they produce, which consists frequently of
danger without alarm, though great in value, is in specie very
indeterminate.

2. The individuals whom they affect, in the first instance, are
constantly unassignable ; except in as far as by accident they
happen to involve or terminate in such or such offences against
individuals.

3. Consequently they admit not of compensation.

4. Nor of retaliation.

some which in certain countries it is not uncommon for persons to be dis-
posed to prosecute without any artificial inducement, and merely on account
of an antipathy, which such acts are apt to excite. See ch. ii. [Principles
adverse] xi.

1 See note I in the preceding page.

* Accordingly, most of them are apt to be ranked among offences against
the law of nature. Vide supra, Characters of the ist class, Ixii. note.

3 I mean the considerations, right or wrong, which induce or dispose tho
legislator to treat them on the footing of offences.

xvi.] Division of Offences. 307

5. Nor is there any person who has naturally any particular
interest to prosecute them ; except in as far as they appear to
affect the power, or in any other manner the private interest, of
some person in authority.

6. The mischief they produce, as such, is comparatively un-
obvious ; much more so than that of private offences, and more
so likewise, than that of semi-public ones.

7. They are, as such, much less obnoxious to the censure of
the world, than private offences ; less even than semi-public, or
even than self-regarding offences ; unless in particular cases,
through sympathy to certain persons in authority, whose
private interests they may appear to affect.

8. They are more apt than any of the other classes to admit
of different descriptions, in different states and countries.

9. They are constituted, in many cases, by some circumstances
of aggravation superadded to a private offence : and therefore,
in these cases, involve the mischief and exhibit the other cha-
racters belonging to both classes. They are however, even in
such cases, properly enough ranked in the 4th class, inasmuch
as the mischief they produce in virtue of the properties which
aggregate them to that class, eclipses and swallows up that which
they produce in virtue of those properties which aggregate them
to the 1st.

10. There may be sufficient ground for punishing them, with-
out their being proved to have occasioned, or to be about to
occasion, any particular mischief to any particular individual.
In this they differ from private offences, but agree with semi-
public ones. Here, as in semi-public offences, the extent of the
mischief makes up for the uncertainty of it.

11. In no case can satisfaction, given to any particular indi-
vidual affected by them, be a sufficient ground for remitting
punishment. In this they differ from private offences ; but agree
with semi-public.

LXVI. Characters of Class 5, or appendix : composed of MUL- characters
TiFORMor ANOMALOUS offences ; and containing offences by
FALSEHOOD, and offences concerning TRUST.

X 2

308 Division of Offences.

1. Taken collectively, in the parcels marked out by their
popular appellations, they are incapable of being aggregated to
any systematical method of distribution, grounded upon the
mischief of the offence.

2. They may, however, be thrown into sub-divisions, which
may be aggregated to such a method of distribution.

3. These sub-divisions will naturally and readily rank under
the divisions of the several preceding classes of this system.

4. Each of the two great divisions of this class spreads itself
in that manner over all the preceding classes.

5. In some acts of this class, the distinguishing circumstance
which constitutes the essential character of the offence, will in
some instances enter necessarily, in the character of a criminative
circumstance, into the constitution of the offence; insomuch that,
without the intervention of this circumstance, no offence at all,
of that denomination, can be committed 1 . In other instances,
the offence may subsist without it ; and where it interferes, it
comes in as an accidental independent circumstance, capable of
constituting a ground of aggravation 2 .

1 Instance, offences by falsehood, in the case of defraudment.
a Instance, offences by falsehood, in the case of simple corporal injuries,
and other offences against person.

CHAPTER XVII.

OP THE LIMITS OF THE PENAL BRANCH OF JURISPRUDENCE.

I. Limits between Private Ethics and the Art of Legislation.

I. So much for the division of offences in general. Now an i to of this
offence is an act prohibited, or (what comes to the same thing) c iap er *
an act of which the contrary is commanded, by the law : and
what is it that the law can be employed in doing, besides pro-
hibiting and commanding ? It should seem then, according to
this view of the matter, that were we to have settled what may
be proper to be done with relation to offences, we should thereby
have settled every thing that may be proper to be done in the
way of law. Yet that branch which concerns the method of deal-
ing with offences, and which is termed sometimes the criminal,
sometimes the penal, branch, is universally understood to be but
one out of two branches which compose the whole subject of the
art of legislation ; that which is termed the civil being the
other x . Between these two branches then, it is evident enough,
there cannot but be a very intimate connection ; so intimate is
it indeed, that the limits between them are by no means easy to
mark out. The case is the same in some degree between the
whole business of legislation (civil and penal branches taken
together) and that of private ethics. Of these several limits

1 And the constitutioncd branch, what is become of it? Such is the ques-
tion which many a reader will be apt to put. An answer that might be
given is that tho matter of it might without much violence be distributed
under the two other heads. But, as far as recollection serves, that branch,
notwithstanding its importance, and its capacity of being lodged separately
from the other matter, had at that time scarcelypresentcd itself to my view
in the character of a distinct one : the thread of my enquiries had not as
yet reached it. But in the concluding note of this same chapter, in para-
graphs xxii. to the end, tho omission may be scon in some measure supplied.

310 Of the Limits of the [CHAP.

however it will be in a manner necessary to exhibit some idea :
lest, on the one hand, we should seem to leave any part of the
subject that does belong to us untouched, or, on the other hand,
to deviate on any side into a track which does not belong to us.

In the course of this enquiry, that part of it I mean which
concerns the limits between the civil and the penal branch of
law, it will be necessary to settle a number of points, of which
the connection with the main question might not at first sight
be suspected. To ascertain what sort of a thing a law is ; what
the parts are that are to be found in it ; what it must contain
in order to be complete ; what the connection is between that
part of a body of laws which belongs to the subject of procedure
and the rest of the law at large : all these, it will be seen, are
so many problems, which must be solved before any satisfactory
answer can be given to the main question above mentioned.

Nor is this their only use : for it is evident enough, that the
notion of a complete law must first be fixed, before the legislator
can in any case know what it is he has to do, or when his work
is done.

^" ^^ics at ^ ar g e ma y ^ e defined, the art of directing men's
what. ' actions to the production of the greatest possible quantity of
happiness, on the part of those whose interest is in view.

ethics 6 *^' ^at *ken are ^ e ac ti ns which it can be in a man's

power to direct ? They must be either his own actions, or those
of other agents. Ethics, in as far as it is the art of directing a
man's own actions, may be styled the art of self -government, or
private ethics.

wwernmeiit- IV * What otlier a g ents th en are there, which, at the same

halation ^ mc ^ lSi ^ ^ c ^ are un( ^ er *^ e influence of man's direction, are

and admin- susceptible of happiness ? They are of two sorts : i. Other

human beings who are styled persons. 2. Other animals, which,

on account of their interests having been neglected by the in-

sensibility of the ancient jurists, stand degraded into the class of

things l . As to other human beings, the art of directing their

nwnm * Undc ? tho Gontoo and Mahometan religions, the interests of the rest
improperly of the animal creation seem to have met with some attention. Why

xvir.] Penal Branch of Jurisprudence. 311

actions to the above end is what we mean, or at least the only
thing which, upon the principle of utility, we ought to mean, by
the art of government : which, in as far as the measures it dis-
plays itself in are of a permanent nature, is generally distin-
guished by the name of legislation : as it is by that of adminis-
tration, when they are of a t mporary nature, determined by the
occurrences of the day.

V. Now human creatures, considered with respect to the ma- Art of edu-
turity of their faculties, are either in an adult, or in a non-adult catlon "
state. The art of government, in as far as it concerns the
direction of the actions of persons in a non-adult state, may be

have they not, universally, with as much as those of human creatures, neglected tn
allowance made for the difference in point of sensibility? Because the
laws that are have been the work of mutual fear ; a sentiment which the
less rational animals have not had the same means as man has of turning
to account. Why ought they not ? No reason can be given. If the being
eaten were all, there is very good reason why we should be suffered to eat
such of them as we like to eat : we are the better for it, and they are never
the worse. They have none of those long-protracted anticipations of future
misery which we have. The death they suffer in our hands commonly is,
and always may be, a speedier, and by that means a less painful one, than
that which would await them in the inevitable course of nature. If the
being killed were all, there is very good reason why we should be suffered
to kill such as molest us : we should be the worse for their living, and they
are never the worse for being dead. But is there any reaboii why we
should be suffered to torment them ? Not any that I can see. Are there
any why we should not be suffered to torment them ? Yes, several. See
B. I. tit. [Cruelty to animals]. The day has been, I grieve to say in many
places it is not yet past, in which the greater part of the species, under
the denomination of slaves, have been treated by the law exactly upon the
same footing as, in England for example, the inferior races of animals are
still. The day may come, when the rest of the animal creation may ae-
quire those rights which never could have been withholden from them but
by the hand of tyranny. The French have already discovered that the
blackness of the skin is no reason why a human being should be abandoned
without redress to the caprice of a tormentor 1 . It may come one day to be
recognized, that the number of the legs, the villosity of the skin, or the
termination of the os sacrum, are reasons equally insufficient for abandon-
ing a sensitive being to the same fate. What else is it that should trace
the insuperable line ? Is it the faculty of reason, or, perhaps, the faculty
of discourse ? But a full-grown horse or dog is beyond comparison a more
rational, as well as a more conversable animal, than an infant of a day, or
a week, or even a month, old. But suppose the case were otherwise, what
would it avail ? the question is not, Can they reason? nor, Can they talk?
but, Can they suffer?

1 See Lewis XlVtti'a Code Noir.

Of the Limits of the [CHAP.

termed the art of education. Inasfar as this business is entrusted
with those who, in virtue of some private relationship, are in the
main the best disposed to take upon them, and the best able to
discharge, this office, it may be termed the art of private educa-
tion : in as far as it is exercised by those whose province it is to
superintend the conduct of the whole community, it may be
termed the art of public education.

Ethics exhi- VI. As to ethics in general, a man's happiness will depend,
rules of, in the first place, upon such parts of his behaviour as none but
2. Probfty? 6 ' himself are interested in ; in the next place, upon such parts of
ceuoe? 6 " it as ma 7 affect the happiness of those about him. In as far as
his happiness depends upon the first-mentioned part of his be-
haviour, it is said to depend upon his duty to himself. Ethics
then, in as far as it is the art of directing a man's actions in this
respect, may be termed the art of discharging one's duty to one's
self : and the quality which a man manifests by the discharge of
this branch of duty (if duty it is to be called) is that of prudence.
In as far as his happiness, and that of any other person or per-
sons whose interests are considered, depends upon such parts of
his behaviour as may affect the interests of those about him, it
may be said to depend upon his duty to others ; or, to use a
phrase now somewhat antiquated, his duty to his neighbour.
Ethics then, in as far as it is the art of directing a man's actions
in this respect, may be termed the art of discharging one's duty
to one's neighbour. Now the happiness of one's neighbour may
be consulted in two ways : I. In a negative way, by forbearing
to diminish it. 2. In a positive way, by studying to increase it.
A man's duty to his neighbour is accordingly partly negative
and partly positive : to discharge the negative branch of it, is
probity : to discharge the positive branch, beneficence.
rrobity and VII. It may here be asked, How it is that upon the prin-
how e they ce ' cipleof private ethics, legislation and religion out of the question,
1 a man's happiness depends upon such parts of his conduct as
afiect, immediately at least, the happiness of no one but himself :
this is as much as to ask, What motives (independent of such as
legislation and religion may chance to furnish) can one man have

xvii.] Penal Branch of Jurisprudence. 313

I

to consult the happiness of another ? by what motives, or, which

comes to the same thing, by what obligations, can he be bound to
obey the dictates of probity and beneficence ? In answer to this,
it cannot but be admitted, that the only interests which a man
at all times and upon all occasions is sure to find adequate mo-
tives for consulting, are his own. Notwithstanding this, there
arc no occasions in which a man has not some motives for con-
sulting the happiness of other men. In the first place, he has,
on all occasions, the purely social motive of sympathy or benevo-
lence : in the next place, he has, on most occasions, the semi-
social motives of love of amity and love of reputation. The mo-
tive of sympathy will act upon him with more or less effect,
according to the bias of his sensibility x : the two other motives,
according to a variety of circumstances, principally according to
the strength of his intellectual powers, the firmness and steadi-
ness of his mind, the quantum of his moral sensibility, and the
characters of the people he has to deal with.

VIII. Now private ethics has happiness for its end : and legis- Every act
lation can have no other. Private ethics concerns every member, proper ob-
that is, the happiness and the actions of every member, of any i^iot of u
community that can be proposed ; and legislation can concern cgls a lon '
no more. Thus far, then, private ethics and the art of legisla-
tion go hand in hand. The end they have, or ought to have, in
view, is of the same nature. The persons whose happiness they
ought to have in view, as also the persons whose conduct they
ought to be occupied in directing, are precisely the same. The
very acts they ought to be conversant about, are even in a great
measure the same. Where then lies the difference ? In that the
acts which they ought to be conversant about, though in a great
measure, are not perfectly and throughout the same. There is
no case in which a private man ought not to direct his own con-
duct to the production of his own happiness, and of that of his
fellow-creatures : but there are cases in which the legislator
ought not (in a direct way at least, and by means of punishment
applied immediately to particular individual acts) to attempt to
1 Ch. vi. [Sensibility] iii.

314 Of the Limits of the [CHAP.

direct the conduct of the several other members of the commu-
nity. Every act which promises to be beneficial upon the whole
to the community (himself included) each individual ought to
perform of himself : but it is not every such act that the legis-
lator ought to compel him to perform. Every act which promises
to be pernicious upon the whole to the community (himself in-
cluded) each individual ought to abstain from of himself : but it
is not every such act that the legislator ought to compel him to
abstain from.
The limits IX. Where then is the line to be drawn ? We shall not have

between the i P mi i

provinces of far to seek for it. The business is to give an idea of the cases
ethics and in which ethics ought, and in which legislation ought not (in a
marked Jut direct manner at least) to interfere. If legislation interferes in

a direct manner, it must be by punishment \ Now the cases in
pums men . ^j^ p un i s l imc nt, meaning the punishment of the political
sanction, ought not to be inflicted, have been already stated 2 .
If then there be any of these cases in which, although legislation
ought not, private ethics docs or ought to interfere, these cases
will serve to point out the limits between the twoartsor branches
of science. These cases,it may be remembered, are of four sorts :
I. Where punishment would be groundless. 2. Where it would
be inefficacious. 3. Where it would be unprofitable. 4. Where
it would be needless. Let us look over all these cases, and see
whether in any of them there is room for the interference of
private ethics, at the same time that there is none for the direct
interference of legislation.
i. Neither X. I. First then, as to the cases where punishment would
pi^where P be groundless. In these cases it is evident, that the restrictive
s. interference of ethics would be groundless too. It is because,
upon the whole, there is no evil in the act, that legislation ought
not to endeavour to prevent it. No more, for the same reason,
ought private ethics.

1 I say nothing in this place of reward : because it is only in a few
extraordinary cases that it can be applied, and because even where it is
applied, it may be doubted perhaps whether the application of it can, pro-
perly speaking, be termed an act of legislation. See infra, 3.

2 Ch. xiii. [Cases unmeet].

xvii.] Penal Branch of Jurisprudence. 315

I

XI. 2. As to the cases in which punishment would be ineffi- 2. HOW far
cacious. These, we may observe, may be divided into two sets ettdcs can
or classes. The first do not depend at all upon the nature cases where
of the act : they turn only upon a defect in the timing of the would be*"
punishment. The punishment in question is no more than what, in icaciou ''
for any thing that appears, ought to have been applied to the

act in question. It ought, however, to have been applied at a
different time ; viz. not till after it had been properly denounced.
These are the cases of an ex-post-facto law ; of a judicial sen-
tence beyond the law ; and of a law not sufficiently promulgated.
The acts here in question then might, for anything that appears,
come properly under the department even of coercive legislation :
of course do they under that of private ethics. As to the other set
of cases, in which punishment would be inefficacious ; neither do
these depend upon the nature of the act, that is, of the sort of
act : they turn only upon some extraneous circumstances, with
which an act of any sort may chance to be accompanied. These,
however, are of such a nature as not only to exclude the appli-
cation of legal punishment, but in general to leave little room
for the influence of private ethics. These are the cases where
the will could not be deterred from any act, even by the extra-
ordinary force of artificial punishment : as in the cases of ex-
treme infancy, insanity, and perfect intoxication : of course,
therefore, it could not by such slender and precarious force as
could be applied by private ethics. The case is in this respect
the same, under the circumstances of unintentionality with re-
spect to the event of the action, unconsciousness with regard to
the circumstances, and mis-supposal with regard to the existence
of circumstances which have not existed ; as also where the
force, even of extraordinary punishment, is rendered inoperative
by the superior force of a physical danger or threatened mis-
chief. It is evident, that in these cases, if the thunders of the
law prove impotent, the whispers of simple morality can have
but little influence.

XII. 3. As to the cases where punishment would be wnpro-3. How far,
fitable. These are the cases which constitute the great field for would be on-

' profitable.

3*6 Of Me Limits of the [CHAP.

i

the exclusive interference of private ethics. When a punish-
ment is unprofitable, or in other words too expensive, it is
because the evil of the punishment exceeds that of the offence.
Now the evil of the punishment, we may remember 1 9 is distin-
guishable into four branches : I. The evil of coercion, including
constraint or restraint, according as the act commanded is of the
positive kind or the negative. 2. The evil of apprehension.
3. The evil of sufferance. 4. The derivative evils resulting to
persons in connection with those by whom the three above-men-
tioned original evils are sustained. Now with respect to those
original evils, the persons who lie exposed to them may be two
very different sets of persons. In the first place, persons who
may have actually committed, or been prompted to commit, the
acts really meant to be prohibited. In the next place, per-
sons who may have performed, or been prompted to perform,
such other acts as they fear may be in danger of being involved
in the punishment designed only for the former. But of these
two sets of acts, it is the former only that are pernicious : it is,
therefore, the former only that it can be the business of private
ethics to endeavour to prevent. The latter being by the sup-
position not mischievous, to prevent them is what it can no
more be the business of ethics to endeavour at, than of legisla-
tion. It remains to show how it may happen, that there should
be acts really pernicious, which, although they may very pro-
perly come under the censure of private ethics, may yet be no
fit objects for the legislator to control.

Which it XIII. Punishment then, as applied to delinquency, may be
i. Although unprofitable in both or either of two ways : i. By the expense
the guilty? it would amount to, even supposing the application of it to be
confined altogether to delinquency : 2. By the danger there may
be of its involving the innocent in the fate designed only for the
guilty. First then, with regard to the cases in which the ex-
pense of the punishment, as applied to the guilty, would out-
weigh the profit to be made by it. These cases, it is evident,
depend upofi a certain proportion between the evil of the
1 JSee ch. xiii. [Cases unmeet], iv.

XVIL] Penal Branch of Jurisprudence. 317

punishment and the evil t>f the offence. Now were the offence of
such a nature, that a punishment which, in point of magnitude,
should but just exceed the profit of it, would be sufficient to
prevent it, it might be rather difficult perhaps to find an in-
stance in which such punishment would clearly appear to be
unprofitable. But the fact is, there are many cases in which a
punishment, in order to have any chance of being efficacious,
must, in point of magnitude, be raised a great deal above that
level. Thus it is, wherever the danger of detection is, or, what
comes to the same thing, is likely to appear to be, so small, as
to make the punishment appear in a high degree uncertain. In
this case it is necessary, as has been shown \ if punishment be
at all applied, to raise it in point of magnitude as much as it
falls short in point of certainty. It is evident, however, that all
this can be but guess-work : and that the effect of such a pro-
portion will be rendered precarious, by a variety of circum-
stances : by the want of sufficient promulgation on the part of
the law 2 : by the particular circumstances of the temptation 3 :
and by the circumstances influencing the sensibility of the
several individuals who are exposed to it 4 . Let the seducing
motives be strong, the offence then will at any rate be frequently
committed. Now and then indeed, owing to a coincidence of
circumstances more or less extraordinary, it will be detected,
and by that means punished. But for the purpose of example,
which is the principal one, an act of punishment, considered in
itself, is of no use : what use it can be of, depends altogether
upon the expectation it raises of similar punishment, in future
cases of similar delinquency. But this future punishment, it is
evident, must always depend upon detection. If then the want
of detection is such as must in general (especially to eyes fasci-
nated by the force of the seducing motives) appear too impro-
bable to be reckoned upon, the punishment, though it should be
inflicted, may come to be of no use. Here then will be two
opposite evils running on at the same time, yet neither of them

1 Ch. xiv. [Proportion] xviii. Rule 7.

2 Ch. xiii. [Cases unmeet] iii. Append tit. [Promulgation].

3 Ch. xi. [Disposition] xxxv. &o, * Ch. vi, [Sensibility],

3i 8 Of the Limits of the [CHAP.

reducing the quantum of the other : tlie evil of the disease and
the evil of the painful and inefficacious remedy. It seems to be
partly owing to some such considerations, that fornication, for
example, or the illicit commerce between the sexes, has com-
monly either gone altogether unpunished, or been punished in a
degree inferior to that in which, on other accounts, legislators
might have been disposed to punish it.

2. By en- XIV. Secondly, with regard to the cases in which political
innocent. punishment, as applied to delinquency, may be unprofitable, in
virtue of the danger there may be of its involving the innocent
in the fate designed only for the guilty. Whence should this
danger then arise ? From the difficulty there may be of fixing
the idea of the guilty action : that is, of subjecting it to such a
definition as shall be clear and precise enough to guard effec-
tually against misapplication. This difficulty may arise from
either of two sources : the one permanent, to wit, the nature of
the actions themselves : the other occasional, I mean thequalities
of the men who may have to deal with those actions in the way
of government. In as far as it arises from the latter of these
sources, it may depend partly upon the use which the legislator
may be able to make of language ; partly upon the use which,
according to the apprehension of the legislator, the judge may
be disposed to make of it. As far as legislation is concerned,
it will depend tipon the degree of perfection to which the arts
of language may have been carried, in the first place, in the
nation in general ; in the next place, by the legislator in par-
ticular. It is to a sense of this difficulty, as it should seem, that
we may attribute the caution with which most legislators have
abstained from subjecting to censure, on the part of the law,
such actions as come under the notion of rudeness, for example,
or treachery, or ingratitude. The attempt to bring acts of so
vague and questionable a nature under the control of law, will
argue either a very immature age, in which the difficulties
which give birth to that danger are not descried ; or a very
enlightened age, in which they are overcome l .
1 In certain countries, in which the voice of the people has a more

xvn.] Penal Branch of Jurisprudence. 319

XV* For the sake of Obtaining the clearer idea of the limits Legislation
between the art of legislation and private ethics, it may now be cessary for
time to call to mind the distinctions above established with mlnToftho
regard to ethics in general. The degree in which private ethics prudence.
stands in need of the assistance of legislation, is different in the
three branches of duty above distinguished. Of the rules of
moral duty, those which seem to stand least in need of the as-
sistance of legislation are the rules of prudence. It can only be
through some defect on the part of the understanding, if a man
be ever deficient in point of duty to himself. If he does wrong,
there is nothing else that it can be owing to but either some in-
advertence 1 or some mis-supposal 1 with regard to the circum-
stances on which his happiness depends. It is a standing topic
of complaint, that a man knows too little of himself. Be it so :
but is it so certain that the legislator must know more 2 ? It is
plain, that of individuals the legislator can know nothing : con-
cerning those points of conduct which depend upon the parti-
cular circumstances of each individual, it is plain, therefore,
that he can determine nothing to advantage. It is only with
respect to those broad lines of conduct in which all persons, or
very large and permanent descriptions of persons, may be in a
way to engage, that he can have any pretence for interfering ;
and even here the propriety of his interference will, in most

especial control over the hand of the legislator, nothing can exceed the
dread which they are under of seeing any effectual provision made against
the offences which come under the head of defamation, particularly that
branch of it which may bo styled the political. This dread seems to de-
pend partly upon the apprehension they may think it prudent to entertain
of a defect in point of ability or integrity on the part of the legislator,
partly upon a similar apprehension of a defect in point of integrity on the
part of the judge.

1 See ch. ix. [Consciousness].

* Ch. xvi. [Division] lii.

On occasions like this the legislator should never lose sight of tho
well-known story of the oculist and the sot. A countryman who had hurt
his eyes by drinking, went to a celebrated oculist for advice. He found
him at table, with a glass of wine before him. * You must leave off drink-
ing,' said the oculist. ' How so ? ' says the countryman. ' You don't, and
yet methinks your own eyes are none of the best.' ' That's very true,
friend,' replied the oculist : * but you are to know, I love my bottle
better than my eyes.'

Of the Limits of the [CHAP.

instances, lie very open to dispute. Ai any rate, he must never
expect to produce a perfect compliance by the mere force of the
sanction of which he is himself the author. All he can hope to
do, is to increase the efficacy of private ethics, by giving strength
and direction to the influence of the moral sanction. With
what chance of success, for example, would a legislator go
about to extirpate drunkenness and fornication by dint of legal
punishment ? Not all the tortures which ingenuity could invent
would compass it: and, before he had made any progress worth
regarding, such a mass of evil would be produced by the punish-
ment, as would exceed, a thousand-fold, the utmost possible
mischief of the offence. The great difficulty would be in the
procuring evidence ; an object which could not be attempted,
with any probability of success, without spreading dismay
through every family 1 , tearing the bonds of sympathy asunder 2 ,
and rooting out the influence of all the social motives. All that
he can do then, against offences of this nature, with any pro-
spect of advantage, in the way of direct legislation, is to subject
them, in cases of notoriety, to a slight censure, so as thereby
to cover them with a slight shade of artificial disrepute.
-- Apt to go XVI. It may be observed, that with regard to this branch of

too farm . r

this respect, duty, legislators have, in general, been disposed to carry their
interference full as far as is expedient. The great difficulty here
is, to persuade them to confine themselves within bounds. A
thousand little passions and prejudices have led them to narrow
the liberty of the subject in this line, in cases in which the
punishment is either attended with no profit at all, or with
none that will make up for the expense.

Particu- XVII. The mischief of this sort of interference is more par-
matters of ticularly conspicuous in the article of religion. The reasoning,
religion. . n ^^ cag( ^ j s Q j ^ f o n ow ing stamp. There are certain errors,
in matters of belief, to which all mankind are prone : and for
these errors in judgment, it is the determination of a Being of

1 Evil of apprehension : third branch of the evil of a punishment.
Cli. xtii. iv.

2 Derivative evils : fourth branch of the evil of a punishment. Ib.

xvii.] Penal Branch of Jurisprudence. 321

infinitebenevolence, to punish them with an infinity of torments.
But from these errors the legislator himself is necessarily free :
for the men, who happen to be at hand for him to consult with,
being men perfectly enlightened, unfettered, and unbiassed, have
such advantages over all the rest of the world, that when they
sit down to enquire out the truth relative to points so plain and
so familiar as those in question, they cannot fail to find it. This
being the case, when the sovereign sees his people ready to
plunge headlong into an abyss of fire, shall he not stretch out a
hand to save them ? Such, for example, seems to have been the
train of reasoning, and such the motives, which led Lewis the
XlVth into those coercive measures which he took for the con-
version of heretics and the confirmation of true believers. The
ground- work, pure sympathy and loving-kindness : the super-
structure, all the miseries which the most determined malevo-
lence could have devised x . But of this more fully in another
place 2 .

XVIII. The rules of probity are those, which in point of ex- HOW far
pediency stand most in need of assistance on the part of
legislator, and in which, in point of fact, his interference
been most extensive. There are few cases in which it would be of problty *
expedient to punish a man for hurting himself : but there are
few cases, if any, in which it would not be expedient to punish a

1 I do not mean but that other motives of a less social nature might
have introduced themselves, and probably, in point of fact, did introduce
themselves, in the progress of the enterprise. But in point of possibility,
the motive above mentioned, when accompanied with such a thread of rea-
soning, is sufficient, without any other, to account for all the effects above
alluded to. If any others interfere, their interference, how natural soever,
may be looked upon as an accidental and inessential circumstance, not ne-
cessary to the production of the effect. Sympathy, a concern for the
danger they appear to be exposed to, gives birth to the wish of freeing
them from it : that wish shows itself in the shape of a command : this com-
mand produces disobedience : disobedience on the one part produces disap-
pointment on the other : the pain of disappointment produces ill-will
towards those who are the authors of it. The affections will often make
this progress in less time than it would take to describe it. The sentiment
of wounded pride, and other modifications of the love of reputation and the
love of power, add fuel to the flame. A kind of revenge exasperates the
severities of coercive policy.

1 See B. I. tit. [Self-regarding offences.]

BENTHAM V

322 Of the Limits of the [CHAP.

man for injuring his neighbour. With regard to that branch of
probity which is opposed to offences against property, private
ethics depends in a manner for its very existence upon legis-
lation. Legislation must first determine what things are to be
regarded as each man's property, before the general rules of
ethics, on this head, can have any particular application. The
case is the same with regard to offences against the state. With-
out legislation there would be no such thing as a state : no par-
ticular persons invested with powers to be exercised for the
benefit of the rest. It is plain, therefore, that in this branch the
interference of the legislator cannot anywhere be dispensed with.
We must first know what are the dictates of legislation, before
we can know what are the dictates of private ethics *.
of the XIX. As to the rules of beneficence, these, as far as concerns

beneficence, matters of detail, must necessarily be abandoned in great mea-
sure to the jurisdiction of private ethics. In many cases the
beneficial quality of the act depends essentially upon the dis-
position of the agent ; that is, upon the motives by which he
appears to have been prompted to perform it : upon their be-
longing to the head of sympathy, love of amity, or love of repu-
tation ; and not to any head of self-regarding motives, brought
into play by the force of political constraint : in a word, upon
their being such as denominate his conduct free and voluntary,
according to one of the many senses given to those ambiguous
expressions 2 . The limits of the law on this head seem, how-

1 But suppose the dictates of legislation are not what they ought to be:
what are then, or (what in this case comes to the same thing) what ought
to be, the dictates of private ethics? Do they coincide with the dictates
of legislation, or do they oppose them, or do they remain neuter ? a very
interesting question this, but one that belongs not to the present subject.
It belongs exclusively to that of private ethics. Principles which may lead
to the solution of it may be seen in A Fragment on Government, p. 150,
Lond. edit. 1776 and p. 114, edit. 1823.

2 If we may believe M. Voltaire 1 , there was a time when the French
ladies who thought themselves neglected by their husbands, used to petition
pour tire embesoignees: the technical word, which, he says, was appropriated
to this purpose. This sort of law- proceedings seems not very well calcu-
lated to answer the design: accordingly we hear nothing of them now-a-

1 Quest, sur 1'Encyclop. torn. 7. art. Impuisaance.

xvii.] Penal Branch of Jurisprudence. 323

ever, to be capable of being extended a good deal farther than
they seem ever to have been extended hitherto. In particular,
in cases where the person is in danger, why should it not be
made the duty of every man to save another from mischief , when
it can be done without prejudicing himself, as well as to abstain
from bringing it on him ? This accordingly is the idea pursued
in the body of the work l .

XX. To conclude this section, let us recapitulate and bring to Difference
a point the difference between private ethics, considered as an private
art or science, on the one hand, and that branch of jurisprudence the art of
which contains the art or science of legislation, on the other. reca\>?tu- n
Private ethics teaches how each man may dispose himself to a
pursue the course most Conducive to hisown happiness, by means

of such motives as offer of themselves : the art of legislation
(which may be considered as one branch of the science of juris-
prudence) teaches how a multitude of men, composing a com-
munity, may be disposed to pursue that course which upon the
whole is the most conducive to the happiness of the whole com-
munity, by means of motives to be applied by the legislator.

We come now to exhibit the limits between penal and civil
jurisprudence. For this purpose it may be of use to give a dis-
tinct though summary view of the principal branches into which
jurisprudence, considered in its utmost extent, is wont to be
divided.

2. Jurisprudence, its branches.

XXI. Jurisprudence is a fictitious entity: nor can any mean- Jurispru-
ing be found for the word, but by placing it in company

some word that shall be significative of a real entity. To know censona

days. The French ladies of the present age seem to be under no such
difficulties.

1 A woman's head-dress catches fire : water is at hand : a man, instead
of assisting to quench the fire, looks on, and laughs at it. A drunken man,
falling with his face downwards into a puddle, is in danger of B allocation :
lifting his head a little on one side would save him : another man sees this
and lets him lie. A quantity of gunpowder lies scattered about a room : a
man is going into it with a lighted candle : another, knowing this, lets him
go in without warning. Who is there that in any of these cases would
think punishment misapplied ?

Y2

324 Of Me Limits of tfie [CHAP.

what is meant by jurisprudence, we \nust know, for example,
what is meant by a book of jurisprudence. A book of jurispru-
dence can have but one or the other of two objects: I. To ascer-
tain what the law 1 is : 2. to ascertain what it ought to be. In the
former case it may be styled a book of expository jurisprudence ;
in the latter, a book of censorial jurisprudence : or, in other
words, a book on the art of legislation.

Expository XXII. A book of expository jurisprudence, is either authori-
tative or unauthoritative. It is styled authoritative, when it is
composed by him who, by representing the state of the law to be

tatlve * so and so, causeth it so to be ; that is, of the legislator him-
self : unauthoritative, when it is the work of any other person
at large.

Sources of XXIII. Now law, or the law, taken indefinitely, is an abstract

thedistinc- ' . ' J .

tions yet re- and collective term; which, when it means any thing, can mean
neither more nor less than the sum total of a number of indi-
vidual laws taken together 2 . It follows, that of whatever other
modifications the subject of a book of jurisprudence is sus-
ceptible, they must all of them be taken from some circumstance
or other of which such individual laws, or the assemblages into
which they may be sorted, are susceptible. The circumstances
that have given rise to the principal branches of jurisprudence
we are wont to hear of, seem to be as follows : I. The extent of
the laws in question in point of dominion. 2. The political
quality of the persons whose conduct they undertake to regulate.

1 The word law itself, which stands so much in need of a definition, must
wait for it awhile (see 3) : for there is no doing every thing at once. In
the mean time every reader will understand it according to the notion he
has been accustomed to annex to it.

2 In most of the European languages there are two different words for
distinguishing the abstract and the concrete senses of the word law: which
words are so wide asunder as not even to have any etymological affinity.
In Latin, for example, there is lex for the concrete sense, jus for the
abstract: in Italian, legge and diritto: in French, loi and droit: in Spanish,
ley and derecko : in German, gesetz and recht. The English is at present
destitute of this advantage.

In the Anglo-Saxon, besides lage, and several other words, for the con-
crete sense, there was the word right, answering to the German recht, for
the abstract as may be seen in the compound fclc-right, and in other in-
stances. But the word right having long ago lost this sense, the modern
English no longer possesses this advantage.

xvii.] Penal Broach of Jurisprudence. 325

3. The time of their being in force. 4. The manner in which
they are expressed. 5. The concern which they have with the
article of punishment.

XXIV. In the first place, in point of extent, what is delivered Jurfepru-

,1 i ,- i r -,i dence, local

concerning the laws in question, may have reference either to universal,
the laws of such or such a nation or nations in particular, or to
the laws of all nations whatsoever : in the first case, the book
may be said to relate to local, in the other, to universal, juris-
prudence.

Now of the infinite variety of nations there are upon the
earth, there are no two which agree exactly in their laws : cer-
tainly not 111 the whole : perhaps not even in any single article :
and let them agree to-day, they would disagree to-morrow. This
is evident enough with regard to the substance of the laws : and
it would be still more extraordinary if they agreed in point
of/orm; that is, if they were conceived in precisely the same
strings of words. What is more, as the languages of nations are
commonly different, as well as their laws, it is seldom that,
strictly speaking, they have so much as a single word in com-
mon. However, among the words that are appropriated to the
subject of law, there are some that in all languages are pretty
exactly correspondent to one another: which comes to the same
thing nearly as if they were the same. Of this stamp, for ex-
ample, are those which correspond to the words power, right,
obligation, liberty, and many others.

It follows, that if there are any books which can, properly
speaking, be styled books of universal jurisprudence, they must
be looked for within very narrow limits. Among such as are
expository, there can be none that are authoritative : nor even,
as far as the substance of the laws is concerned, any that are un-
authoritative. To be susceptible of an universal application, all
that a book of the expository kind can have to treat of, is the
import of words : to be, strictly speaking, universal, it must con-
fine itself to terminology. Accordingly the definitions which
there has been occasion here and there to intersperse in the
course of the present work, and particularly the definition here-

326 Of the Limits of^the [CHAP.

after given of the word law, may be considered as matter be-
longing to the head of universal jurisprudence. Thus far in
strictness of speech : though in point of usage, where a man, in
laying down what he apprehends to be the law, extends his
views to a few of the nations with which his own is most con-
nected, it is common enough to consider what he writes as
relating to universal jurisprudence.

It is in the censorial line that there is the greatest room for
disquisitions that apply to the circumstances of all nations alike:
and in this line what regards the substance of the laws in ques-
tion is as susceptible of an universal application, as what regards
the words. That the laws of all nations, or even of any two
nations, should coincide in all points, would be as ineligible as
it is impossible : some leading points, however, there seem to
be, in respect of which the laws of all civilised nations might,
without inconvenience, be the same. To mark out some of
these points will, as far as it goes, be the business of the body
of this work.

-internal XXV. In the second place, with regard to the political quality
national, of the persons whose conduct is the object of the law. These
may, on any given occasion, be considered either as members of
the same state, or as members of different states : in the first
case, the law may be referred to the head of internal, in the
second case, to that of international l jurisprudence.

Now as to any transactions which may take place between in-
dividuals who are subjects of different states, these are regulated
by the internal laws, and decided upon by the internal tribunals,
of the one or the other of those states: the case is the same where
the sovereign of the one has any immediate transactions with a

1 The word international, it must be acknowledged, is a new one ;
though, it is hoped, sufficiently analogous and intelligible. It is calculated
to express, in a more significant way, the branch of law which goes com-
monly under the name of the law of nations : an appellation so uncharac-
teristic, that, were it not for the force of custom, it would seem rather to
refer to internal jurisprudence. The chancellor D'Aguesseau has already
made, I find, a similar remark : he says that what is commonly called droit
des gens, ought rather to be termed droit entre les gens l .

1 (Euvres, Tom. ii. p. 337, edit. 1773, 12.110.

xvii.] Penal Branch of Jurisprudence. 327

private member of the other : the sovereign reducing himself,
pro re natd, to the condition of a private person, as often as he
submits his cause to either tribunal ; whether by claiming
a benefit, or defending himself against a burthen. There re-
main then the mutual transactions between sovereigns, as such,
for the subject of that branch of jurisprudence which may be
properly and exclusively termed international l .

With what degree of propriety rules for the conduct of per-
sons of this description can come under the appellation of laws,
is a question that must rest till the nature of the thing called
a law shall have been more particularly unfolded.

It is evident enough, that international jurisprudence may,
as well as internal, be censorial as well as expository, unauthori-
tative as well as authoritative.

XXVI. Internal jurisprudence, again, may either concern all the Internal ju-

members of a state indiscriminately, or such of them only as are national and

1-1 i i provincial,

connected in the way of residence, or otherwise, with a particular local or par-
,. T . , . ' , .,..., , ticular.

district. J unsprudence is accordingly sometimes distinguished

into national and provincial. But as the epithet provincial is
hardly applicable to districts so small as many of those which
have laws of their own are wont to be, such as towns, parishes,
and manors ; the term local (where universal jurisprudence is
plainly out of the question) or the term particular, though this

1 In the times of James I. of England and Philip III. of Spain, certain
merchants at London happened to have a claim upon Philip, which his
ambaSiSador Gondemar did not think fit to satisfy. They applied for coun-
sel to Si'lden, who advised them to sue the Spanish monarch in the court of
King's Bench, and prosecute him to an outlawry. They did so : and the
sheriffs of 1 Condon were accordingly commanded, in the usual form, to take
the body of the defendant Philip, wherever it was to be found within their
bailiwick. As to the sheriffs, Philip, we may believe, was in no great
fear of them : but, what answered the same purpose, he happened on his
part to have demands upon some other merchants, whom, so long as the
outlawry remained in force, there was no proceeding against. Gondemar
paid the money *. This was internal jurisprudence : if the dispute had
been betwixt Philip and James himself, it would have been international.

As to the word international, from this work, or the first of the works
edited in French by Mr. Dumont, it has taken root in the language.
Witness reviews and newspapers.

1 Seldeu'a Table-Talk, tit. Law.

328 Of the Limits of the [CHAP.

<

latter is not very characteristic, might either of them be more

commodious l .

XXVII. Thirdly, with respect to time. In a work of the
Uving nt ~ expository kind, the laws that are in question may either be
such as are still in force at the time when the book is writing,
or such as have ceased to be in force. In the latter case the
subject of it might be termed ancient ; in the former, present or
living jurisprudence : that is, if the aubst&ntive jurisprudence,
and no other, must at any rate be employed, and that with an
epithet in both cases. But the truth is, that a book of the former
kind is rather a book of history than a book of jurisprudence ;
and, if the WOT A jurisprudence be expressive of the subject, it is
only with some such words as history or antiquities prefixed.
And as the laws which are any where in question are supposed,
if nothing appears to the contrary, to be those which are in
force, no such epithet as that of present or living commonly
appears.

Where a book is so circumstanced, that the laws which form
the subject of it, though in force at the time of its being written,
are in force no longer, that book is neither a book of living juris-
prudence, nor a book on the history of jurisprudence : it is no
longer the former, and it never was the latter. It is evident
that, owing to the changes which from time to time must take
place, in a greater or less degree, in every body of laws, every
book of jurisprudence, which is of an expository nature, must in
the course of a few years, come to partake more or less of this
condition.

The most common and most useful object of a history of juris-
prudence, is to exhibit the circumstances that have attended the
establishment of laws actually in force. But the exposition of
the dead laws which have been superseded, is inseparably inter-
woven with that of the living ones which have superseded them.

1 The term municipal seemed to answer the purpose very well, till it
was taken by an English author of the first eminence to signify internal
law in general, in contradistinction to international law, and the imaginary
law of nature. It might still be used in this sense, without scruple, in any
other language.

xvn.] Penal Branch of Jurisprudence. 329

The great use of both these branches of science, is to furnish ex-
amples for the art of legislation *.

XXVIII . Fourthly, in point of expression, the laws in question Ju
may subsist either in the form of statute or in that of customarv tutory

. customary.

law.

As to the difference between these two branches (which re-
spects only the article of form or expression) it cannot properly
be made appear till some progress has been made in the defini-
tion of a law.

XXIX. Lastly, The most intricate distinction of all, and that Jurispru-
which comes most frequently on the carpet, is that which is --penal-
made between the civil branch of jurisprudence and the penal,
which latter is wont, in certain circumstances, to receive the
name of criminal.

What is a penal code of laws ? What a civil code ? Of what Question

i . T concerning

nature are their contents ? Is it that there are two sorts of the disttnc-
laws, the one penal the other civil, so that the laws in a penal the civil
code are all penal laws, while the laws in a civil code are all the penal,
civil laws ? Or is it, that in every law there is some matter
which is of a penal nature, and which therefore belongs to the
penal code ; and at the same time other matter which is of a civil
nature, and which therefore belongs to the civil code ? Or is
it, that some laws belong to one code or the other exclusively,
while others are divided between the two ? To answer these
questions in any manner that shall be tolerably satisfactory, it
will be necessary to ascertain what a law is; meaning one entire
but single law : and what are the parts into which a law, as such,

1 Of what stamp arc the works of Grotius, Puffendorf, and Burlamaqui?
Are they political or ethical, historical or juridical, expository or censorial?
Sometimes one tiling, sometimes another : they seem hardly to have
settled the matter with themselves. A defect this to which all books must
almost unavoidably be liable, which take for their subject the pretended
law of nature ; an obscure phantom, which, in the imaginations of those
who go in chase of it, points sometimes to Ma????rr?, sometimes to laws ;
sometimes to what law w, sometimes to what it ought to be *. Montesquieu
sets out upon the censorial plan : but long before the conclusion, as if he
had forgot his lirst design, he throws off the censor, and puts on the anti-
quarian. The Marquis Beccaria's book, the first of any account that is
uniformly censorial, concludes as it sets out, with penal jurisprudence.

1 bee Chap. II. [Principles Adverse] xiv.

330 Of the Limits of the [CHAP.

is capable of being distinguished : or, in other words, to ascer-
tain what the properties are that are to be found in every object
which can with propriety receive the appellation of a law.
This then will be the business of the third and fourth sections :
what concerns the import of the word criminal, as applied to
law, will be discussed separately in the fifth 1 .

Occasion and l Here ends the original work, in the state into which it was brought in

?oSudmg this November, 1780. What follows is now added in January, 1789.

note. The third, fourth, and fifth sections intended, as expressed in the text,

to have been added to this chapter, will not here, nor now be given ;
because to give them in a manner tolerably complete and satisfactory,
might require a considerable volume. This volume will form a work of
itself, closing the series of works mentioned in the preface.

What follows here may serve to give a slight intimation of the nature of
the task, which such a work will have to achieve : it will at the same time
furnish, not any thing likea satisfactory answer to the questions mentioned
in the text, but a slight and general indication of the course to be taken
for giving them such an answer.

By a /*/ here What is a law ? What the parts of a law? The subject of these qties-

tut tant a tions, it is to be observed, is the logical, the ideal, the intellectual whole,
not the physical one : the law, and not the statute. An enquiry, directed to
the latter sort of object, could neither admit of difficulty nor afford instruc-
tion. In this sense whatever is given for law by the person or persons
recognised as possessing the power of making laws, is law. The Meta-
morphoses of Ovid, if thus given, would be law. So much as was embraced
by one and the same act of authentication, so much as received the touch
of the sceptre at one stroke, is one law : a whole law, and nothing more.
A statute of George II. made to substitute an or instead of an and in
a former statute is a complete law ; a statute containing an entire body of
laws, perfect in all its parts, would not be more so. By the word law then,
as often as it occurs in the succeeding pages is meant that ideal object, of
which the part, the whole, or the multiple, or an assemblage of parts,
wholes, and multiples mixed together, is exhibited by a statute ; not the
statute which exhibits them.

Every law is Every law, when complete, is either of a coercive or an uncoercive nature.

man" or C a m " A coercive law is a command.

revocation of An uncoercive, or rather a ch'scoercive, law is the revocation, in whole or

one * in part, of a coercive law.

A declaratory What has been termed a declaratory law, so far as it stands distinguished

periy speaking, from either a coercive or a discoercive law, is not properly speaking a law.

a law. ft i s no t the expression of an act of the will exercised at the time : it is

a mere notification of the existence of a law, either of the coercive or the
discoercive kind, as already subsisting : of the existence of some document
expressive of some act of the will, exercised, not at the time, but at some
former period. If it docs any thing more than give information of this fact,
viz. of the prior existence of a law of either the coercive or the discoercive
kind, it ceases pro tanto to be what is meant by a declaratory law, and
assuming either the coercive or the discoercive quality.

Every coercive Every coercive law creates an offence, that is, converts an act of some

xv ii.] Penal Branch of Jurisprudence. 331

sort, or other into an offence. It is only by so doing that it can impose Jj
obligation, that it can produce coercion.

A law confining itself to the creation of an offence, and a law com- creatin
manding a punishment to be administered in case of the commission of an offence? infi
such an offence, are two distinct laws; not parts (as they seem to have been ^n*^" 1 "" 8
generally accounted hitherto) of one and the same law. The acts they are distinct'
command are altogether different ; the persons they are addressed to are laws '
altogether different. Instance, Let no man steal ; and, Let the judge cause
whoever is convicted of stealing to be hanged.

They might be styled; the former, a simply imperative law ; the other a
punitory: but the punitory, if it commands the punishment to be inflicted,
and does not merely permit it, is as truly imperative as the other: only it is
pimitory besides, which the other is not.

A law of the discoercive kind, considered in itself, can have no punitory vn.
law belonging to it : to receive the assistance and support of a punitory itv^canh'ave 6
law, it must first receive that of a simply imperative or coercive law, and it no punitory
is to this latter that the punitory law will attach itself, and not to the dis- n^f to P 5 e but m "
coercive one. Example ; discoercive law. The sheriff has power to hang all ^"v^nUon of
such as the judge, proceeding in due course of law, shall order him to hang, coerciveone.
Example of a coercive law, made in support of the above discoercive one.
Let no man hinder the sheriff 'from hanging such as the judge, proceeding in
due course of law, shall order him to Jiang. Example of a punitory law,
made in support of the above coercive one. Let the judge cause to be
imprisoned whosoever attempts to hinder the sheriff from hanging one, whom
the judge, proceeding in due course of law, has ordered him to hang.

But though a simply imperative law, and the punitory law attached to vin.
it, are so far distinct laws, that the former contains nothing of the latter, ? involves "^
and the latter, in its direct tenor, contains nothing of the former ; yet ^"j-JJ 1 *^
by implication, and that a necessary one, the punitory does involve and Kiongs to? e u
include the import of the simply imperative law to which it is appended.
To say to the judge, Cause to be hanged whoever in due form of law is
convicted of stealing, is, though not a direct, yet as intelligible a way of
intimating to men in general that they must not steal, as to say to them
directly, Do not steal: and one sees, how much more likely to be efficacious.

It should seem then, that, wherever a simply imperative law is to have ix.
a punitory one appended to it, the former might bo spared altogether : in p e h r atw n e P dne m
which case, saving the exception (which naturally should seem not likely to jp's' 1 . 1 there - .

i t A 7 f i ii f 'A 'ji A i fore be spared.

be a frequent one) of a law capable of answering its purpose without such but for us ex-
Jin appendage, there should be no occasion in the whole body of the law for SJJt^JT
any other than punitory, or in other words than penal, laws. And this,
perhaps, would he the case, were it not for the necessity of a large
quantity of matter of the expository kind, of which we come now to speak.

It will happen in the instance of many, probably of most, possibly of all Nature *' f such
commands endued with the force of a public law, that, in the expression expository
given to such a command, it shall be necessary to have recourse to terms matter
too complex in their signification to exhibit the requisite ideas, without
the assistance of a greater or less quantity of matter of an expository
nature. Such terms, like the symbols used in algebraical notation, are
rather substitutes and indexes to the terms capable of themselves of ex-
hibiting the ideas in question, than the real and immediate representatives
of those ideas.

Take for instance the law, Thou shalt not steal. Such a command, were
it to rest there, could never sufficiently answer the purpose of a law.
A word of so vague and unexplicit a meaning can no other wise perform this

33^ Of the Limits of f the [CHAP.

office, than by giving a general intimation of a variety of propositions, each
requiring, to convey it to the apprehension, a more particular and ample
assemblage of terms. Stealing, for example (according to a definition not
accurate enough for use, but sufficiently so for the present purpose), is the
taking of a thing which is another's, by one who has no TITLE so to do, and is
conscious of his having none. Even after this exposition, supposing it a
correct one, can the law be regarded as completely expressed ? Certainly
not. For what is meant by a man's Jiaving a TITLE to take a thing ? To be
complete, the law must have exhibited, amongst a multitude of other
things, two catalogues : the one of events to which it has given the quality
of conferring title in such a case ; the other of the events to which it has
given the quality of taking it away. AVhat follows ? That for a man to
have stolen, for a man to have had no title to what he took, either no one of
the articles contained in the first of those lists must have happened in his
favour, or if there has, some ono of the number of those contained in the
second must have happened to his prejudice.

xi. Such then is the nature of a general law, that while the imperative part

of ifs comJSra- of it, the punctum saliens as it may be termed, of this artificial body, shall
pcciiSVo not not tft ^ U P a ^ ovo two or three words, its expository appendage, without
legislative which that imperative part could not rightly perform its office, may occupy

commands. ft cons i c i cra bl volume.

But this may equally be the case with a private order given in a family.
Take for instance one from a bookseller to his foreman. Remove, from this
shop to my new one, my ivhole stock, according to this printed catalogue.
Remove, from this shop to my new one, my whole stock, is the imperative
matter of this order ; the catalogue referred to contains the expository
appendage.

xii. The same mass of expository matter may serve in common for, may

ofexpoTitory^a-j^pertain in common to, many commands, many masses of imperative

serve" \ncom ma tter. Thus, amongst other things, the catalogue of collativc&nd ablative

monger many eventrt, with respect to titles above spoken of (see No. IX. of this note), will

laws. belong in common to all or most of the laws constitutive of the various

offences against property. Thus, in mathematical diagrams, one and the

same base shall serve for a whole cluster of triangles.

xin. Such expository matter, being of a complexion so different from the im-

charaSer rativ P crft tive it would be no wonder if the connection of the former with the
essential to latter should escape the observation : which, indeed, is perhaps pretty
hecdnceaied in generally the case. And so long as any mass of legislative matter presents
to' 1 matter 05 *" ^ se ^ which isnot itself imperative or tho contrary, or of which the connec-
oryma er. ^.^ w [^ matter of one of those two descriptions is not apprehended, so
long and so far the truth of the proportion, Thai every law is a command
or its opposite, may remain unsuspected, or appear questionable ; so long
also may the incompleteness of the greater part of those masses of legisla-
tive matter, which wear the complexion of complete laws upon the face of
them, also the method to bo taken for rendering them really complete,
remain undiscovered.

xiv. A circumstance, that will naturally contribute to increase the difficulty

n>ent c is"favour- of the discovery, is the great variety of ways in which the imperation of a
Studeonnd? 1 " ^ awma y ^ e conveyed the great variety of forms which the imperative part
rect formsV" of a law may indiscriminately assume : some more directly,somelessdirectly
Je C mattCT r expressive of the imperative quality. Thou shalt not steal. Let no man
caoabie of stca 7 . Whoso stcalcth shall be punished so and so. If any man steal t he
being couched. ^^ e punished so and so. Stealing is where a man does so and so ; the
'jmnishment for stealing is so and so. To judges so and so named, and so

xvii.] Penal Branch of Jurisprudence. 333

and so constituted, belong the*cogmzance of such and suck offences ; viz.
stealing and so on. These are but part of a multitude of forms of words,
in any of which the command by which stealing is prohibited might equally
be couched : and it is manifest to what a degree, in some of them, the
imperative quality is clouded and concealed from ordinary apprehension.

After this explanation, a general proposition or two, that may be laid mb *v.
down, may help to afford some little insight into the structure and contents n at?re e of a the
of a complete body of laws. So many different sorts of offences created, BO jjJJ { t * J ode
many different laws of the coercive kind : so many exceptions taken out of mined.
the descriptions of those offences, so many laws of the discoercive kind.

To class offences, as hath been attempted to be done in the preceding
chapter, is therefore to class laws: to exhibit a complete catalogue of all
the offences created by law, including the whole mass of expository matter
necessary for fixing and exhibiting the import of the terms contained in the
several laws, by which those offences are respectively created, would be to
exhibit a complete collection of the laws in force : in a word a complete
body of law ; a pannomion f if so it might be termed.

From the obscurity in which the limits of a law, and the distinction Gene ^y, T t i ea
betwixt a law of the civil or simply imperative kind and a punitory law, of the limits
are naturally involved, results the obscurity of the limits betwixt a civil^^
and a penal code, betwixt a civil branch of the law and the penal. code.

The question, What parts of the total mass of legislative matter belong to
the civil branch, and what to the penal? supposes that divers political states,
or at least that some one such state, are to be found, having as well a civil
code as a penal code, each of them complete in its kind, and marked out
by certain limits. But no one such state has ever yet existed.

To put a question to which a true answer can be given, we must sub-
stitute to the foregoing question some such a one as that which follows :

Suppose two masses of legislative matter to be drawn up at this time of
day, the one under the name of a civil code, the other of a penal code, each
meant to be complete in its kind in what general way, is it natural to
suppose, that the different sorts of matter, as above distinguished, would bo
distributed between them ?

To this question the following answer seems likely to come as near as
any other to the truth.

The civil code would not consist of a collection of civil laws, each com-
plete in itself, as well as clear of all penal ones :

Neither would the penal code (since we have seen that it could not)
consist of a collection of punitive laws, each not only complete in itself,but
clear of all civil ones. But

The civil code would consist chiefly of mere masses of expository matter. xvn.
The imperative matter, to which those masses of expository matter re- a?SuJ3e. of a
spec tively appertained, would be found not in that same code not in the
civil code nor in a pure state, free from all admixture of punitory laws ;
but in the penal code in a state of combination involved, in manner as
above explained, in so many correspondent punitory laws.

The penal code then would consist principally of punitive laws, involving xvn i.
the imperative matter of the whole number of civil laws : along with which penafcodef a
would probably also be found various masses of expository matter, apper-
taining not to the civil, but to the punitory laws. The body of penal law,
enacted by the Empress-Queen Maria Theresa, agrees pretty well with this
account.

The mass of legislative matter published in French as well as German, xix.
under the auspices of Frederic II. of Prussia, by the name of Code p^

334

Of the Limits of the

[CHAP.

almost lost in

Roman aw.

stands conspi-
cuous.

xxii.

nexion with the
two others.

xxni.

matter of one
21 ma?be ne

xxiv,
Expository

Frederic, but never established with force of law l , appears, for example, to
be aim os t wholly composed of masses of expository matter, the relation of
which to any imperative matter appears to have been but very imperfectly
apprehended.

la that enormous mass of confusion and inconsistency, the ancient
Roman, or, as it is termed'by way of eminence, the civil law, the imperative
matter, and even all traces of the imperative character, seem at last to have
been smothered in the expository. Esto had been the language of primaeval
simplicity : esto had been the language of the twelve tables. By the time
of Justinian (so thick was the darkness raised by clouds of commentators)
the penal law had been crammed into an odd corner of the civil the whole
catalogue of offences, and even of crimes, lay buried under a heap of
obligations will was hid in opinion and the original esto had transformed
itself into videtur, in the mouths even of the most despotic sovereigns.

Among the barbarous nations that grew up out of the ruins of the
^ oman Empire, Law, emerging from under the mountain of expository
ru bbish , reass umcd for a while the language of command : and then she had
simplicity at least, if nothing else, to recommend her.

Besides the civil and the penal, every complete body of law must con-
tain a tllirtl l > ra nch, the constitutional.

The constitutional branch is chiefly employed in conferring, on par-
ticular classes of persons, powers, to be exercised for the good of the whole
society, or of considerable parts of it, and prescribing duties to the persons
invested with those powers.

The powers arc principally constituted, in the first instance, by dis-
cocrcive or permissive laws, operating as exceptions to certain laws of the
coercive or imperative kind. Instance : A tax-gatherer, as such, may, on
such and such an occasion, take such and such things, without any other

TITLE.

The duties are created by imperative laws, addressed to the persons on
whom the powers are conferred. Instance: On such and such an occasion,
such and such a tax-gatherer shall take such and such things. Such and such
a judge shall, in such and such a case, cause persons so and so offending to be
hanged.

The parts which perform the function of indicating who the individuals
aie, who, in every case, shall be considered as belonging to those classes,
have neither a permissive complexion, nor an imperative.

They are so many masses of expository matter, appertaining in common
to all laws, into the texture of which, the names of those classes of persons
have occasion to be inserted. Instance ; imperative matter : Let the judge
cause whoever, in due course of law, is convicted of stealing, to be hanged.
Nature of the expository matter : Who is the person meant by the word
judge? He who has been invested with that office in such a manner : and
in respect of whom no event has happened, of the number of those, to which
the effect is given, of reducing him to the condition of one divested of that
office.

Thus it is, that one and the same law, one and the same command, will
na ve *ts matter divided, not only between two great codes, or main branches
of the whole body of the laws, the civil and the penal ; but amongst three
. such branches, the civil, the penal, and the constitutional.

I* 1 countries, where a great part of the law exists in no other shape, than
that of which in England is called common law but might be more expres-

1 Mirabeau sur la Monarchic Prussienne, Ton? v. Liv. 8. p. 215.

XVTT.] Penal Branch of Jurisprudence. 335

sively termed judiciary, thefe must be a great multitude of laws, the im- quantity of it
port of which cannot be sufficiently made out for practice, without referring ^ere^uTno"
to this common law, for more or less of the expository matter belonging toother form than
them. Thus in England the exposition of the word titte, that basis of the or
whole fabric of the laws of property, is nowhere else to be found. And, as law -
uncertainty is of the very essence of every particle of law so denominated
(for the instant it is clothed in a certain authoritative form of words it
changes its nature, and passes over to the other denomination) hence it is
that a great part of the laws in being in such countries remain uncertain
and incomplete. What are those countries ? To this hour, every one on
the surface of the globe.

Had the science of architecture no fixed nomenclature belonging to it xxv.
were there no settled names for distinguishing the different sorts of build- "j?abie h sta
ings, nor the different parts of the same building from each other what fth science
would it be? It would be what the science of legislation, considered with consfdereSTn
respect to its for m, remains at present. /?" of lts

Were there no architects who could distinguish a dwelling-house from a
barn, or a side- wall from a ceiling, what would architects be? They would
be what all legislators are at present.

From this very slight and imperfect sketch, may be collected not an xxvi.
answer to the questions in the text but an intimation, and that but an im- ^ffordmg S an
perfect one, of the course to be taken for giving such an answer ; and, at exemplification
any rate, some idea of the difficulty, as well as of the necessity, of the * 22i < as ficulty

task. SS b'ranch of

If it were thought necessary to recur to experience for proofs of this science*^
difficulty, and this necessity, they need not be long wanting. SSfuK? t0

Take, for instance, so many well- meant endeavours on the part of popular powers of
bodies, and so many well-meant recommendations in ingenious books, to representative
restrain supreme representative assemblies from making laws in such and iswturcs.
such cases, or to such and such an effect. Such laws, to answer the intended
purpose, require a perfect mastery in the science of law considered in respect
of its form in the sort of anatomy spoken of in the preface to this work :
but a perfect, or even a moderate insight into that science, would prevent
their being couched in those loose and inadequate terms, in which they may
be observed so frequently to be conceived ; as a perfect acquaintance with
the dictates of utility on that head would, in many, if not in most, of those
instances, diacounsel the attempt. Keep to the letter, and in attempting
to prevent the making of bad laws, you will find them prohibiting the making
of the most necessary laws, perhaps even of all laws : quit the letter, and
they express no more than if each man were to say, Your laws shall become
ipso facto void, as ojten as they contain any thing which is not to my mind.

Of such unhappy attempts, examples may be met with in the legislation
of many nations : but in none more frequently than in that newly-created
nation, one of the most enlightened, if not the most enlightened, at this day
on the globe.

Take for instance the Declaration of Rights, enacted by the State of xxvn.
North Carolina, in convention, in or about the month of September, 1788, American
and said to be copied, with a small exception, from one in like manner declarations
enacted by the State of Virginia l . of n * hts>

The following, to go no farther, is the first and fundamental article :

* That there are certain natural rights, of which men, when they form a
social compact, cannot deprive or divest their posterity, among which are

1 Recherches sur lea Etats Unis, 8vo. 1788, vol. i. p. 158.

336 Limits of the Penal Branch of Jurisprudence.

the enjoyment of life and liberty, with the meUns of acquiring, possessing,
and protecting property, and pursuing and obtaining happiness and safety.'

Not to dwell on the oversight of confining to posterity the benefit of the
rights thus declared, what follows ? That as against those whom the pro-
tection, thus meant to be afforded, includes every law, or other order,
divesting a man of the enjoyment of life or liberty 9 is void.

Therefore this is the case, amongst others, with every coercive law.

Therefore, as against the persons thus protected, every order, for example,
to pay money on the score of taxation, or of debt from individual to indi-
vidual, or otherwise, is void : for the effect of it, if complied with, is ' to
deprive and divest him,' pro tanto, of the enjoyment of liberty, viz. the liberty
of paying or not paying as he thinks proper : not to mention the species
opposed to imprisonment, in the event of such a mode of coercion's being
resorted to : likewise of property, which is itself a ' means of acquiring,
possessing, and protecting property, and of pursuing and obtaining happiness
and safety.

Therefore also, as against such persons, every order to attack an armed
enemy, in time of war, is also void : for, the necessary effect of such an
order is ' to deprive some of them of the enjoyment of life.'

The above-mentioned consequences may suffice for examples, amongst
an endless train of similar ones 1 .

Leaning on his elbow, in an attitude of profound and solemn meditation,
' Wfiat a multitude of things there are ' (exclaimed the dancing-master
Marcel} * in a minuet I ' May wo now add ? and in a law.

1 The Virginian Declaration of Rights, said, in the French work above quoted, to have
been enacted the ist of June, 1776, is not inserted in the publication entitled 'The Constitu-
tions of the several independent states of America, <$<?.' Published by order of Congress :
Philadelphia printed. Jit-printed for Stockdale and Walker^ London, 1782 : though that
publication contains the form of government enacted in the same convention, between the
6th ot May and the 5th of July in the same >ear.

But in that same publication is contained a Declaration of Rights, of the province of
Massachusetts, dated in the years 1779 and 1780, which in its first article is a little similar:
also one ot the province of Pennsylvania, dated between July 15111 and September aStli, in
which the similarity is rather more considerable.

Moreover, the turnout Declaration of Independence, published by Congress July 5th, 1776,
after a prcambular opening, goes on in these words : ' We hold these truths to be self-evident :
that all men arc created equal : that they are endued by the creator vnth certain unalienable
rights : that amongst those are life, liberty, and the pur suit of happiness.'

The Virginian Declaration of Rights is that, it seems, which claims the honour of having
served as a model to those of the other Provinces ; and in respect of the above leading article,
at least, to the above-mentioned general Declaration of Independence. See Recherclies, &c.,
i. 197.

\Vlio can help lamenting, that so rational a cause should be rested upon reasons, so much
fitter to beget objections, than to remove them ?

But with men, who are unanimous arid hearty about measures, nothing so weak but may
pass in the character of a reason: nor is this the first instance in the world, where the con-
clusion has supported the premises, instead of the premises the conclusion.

INDEX.

Absolute duty, see Duty.
Abuse of Trust, xee Trust.
Accessory offences, see Offences.
Acquisition, pleasure of, p. 34.
Act, advised and unadvised, 89.

and action distinguished, 82.

continued and transient, 74.

and repeated, distinguished, 74.

of discourse, what, 73.

divisible and indivisible, 75.

external and internal, 73.

of the mind, what, 97.

mischievous, of the consequences of a, 152-169.

negative and positive, 72.

illustrated in the case of offences against trust, 236 n.

absolutely and relatively negative, 72.

negative, may be expressed positively, 72.

overt or exterior, 73 n.

repeated, and a habit or practice of action, distinguished, 75.

simple and complex, 75

a single, what constitutes ambiguity regarding, 76.

an, general tendency of, how determined, 70, 71.

transitive and intransitive, 73 and 73 n.

a distinction recognised by grammarians, 73 n.

voluntary, its meaning, 82 n.
Action, Human, in general, 70-81.

control of, the principal end of punishment, 170 n.

when examined with a view to punishment; points to be considered, 71.
Acts, distinguished, 72-76.

which rest purely in the understanding, 98.
Addison, his description of religion, 121 it.

Administration, a branch of the art of Government contrasted with that

of Legislation, 311.
Adult, 311.

Adultery, the offence of, 281.
Affection, enlarged, what, 51.
Affinity, relationship by, 257.
Age, as a secondary circumstance influencing sensibility, 59.

its periods distinguished, 59.

Agency, rational and irrational, distinguished, 71.

Aggravation, state of the consciousness, as furnishing a ground of, 96.

grounds of, constituted by offences against trust and by falsehood, 308.

338 Index.

Alarm, a branch of the secondary mischief of an act, 153.

none, when the person the object of attack not determinate, 162.

due to the apparent mental attitude of the actor at the time of an act,

164.

goodness of the motive of an act does not remove, 165.

nature of the motive, how it affects, 167.

disposition of the actor, how it affects, 168.

and danger, distinguished, 157.

their branches, 157.

to what causes due, 157.

sometimes, danger always contingent, 159.
Alien, the condition of an, how constituted, 294.

Ambassador, the trust of an, or presbeutic trust, offences affecting, 289 n.

injuries to an, 286 n.

Ambition, under what class of motives it falls, 109.

its relation to love of power and to love of reputation, in.
Amity, or self-recommendation, the pleasures of, their nature, 35.

or self-recommendation, the pleasures of, motives corresponding to, 108.

the desire of, placed in the class of good motives, 119.

how far coincident with that of benevolence, 123.
with that of the love of reputation, 123.
conformable to utility, 123.

classed as a semi- social as well as a self-regarding motive, 121.
as a standing tutelary motive, considered, 144.

the motive of, commonly associated with that of benevolence or sym-

pathy, 1 08.

its varying effects illustrated, 108.
how far coincident with that of benevolence, 123.

the pleasures and pains of, and those of benevolence, distinguished, 4 in.
Anglo-Saxon Wer-geld, see Wer-geld.

Animals, cruelty to, see Cruelty.
Animo malo, meaning of the expression, 95 n.
Antipathetic bias and sensibility, explained, 51.
Antipathy, occasionally causes actions with good effects, 23.

never a right ground of action, 23.

resentment merely a modification of, 23.

as an inducement to punish the self-regarding offences, 306.

connexion in the way of, as influencing sensibility, 55.

the principle of, needs regulation by that of utility, 23.

errs on the side of severity, 20.

and sympathy, the principle of, its influence in exciting disapproval of

the various classes of offences, 303-305 and n., 306.

see also Sympathy.

Apprehension, or expectation, the pains of, 41.

or expectation, the pains of, and those of sufferance, distinguished,

41 n.

Apprentice, see Master.
Asceticism, origin of the word, 8 n.

the principle of, what, 9.

a partisan of, who, 9.

why favoured by certain moralists, 9.

followed under the name of religion, 123.

often the ground of approbation or disapprobation of action, 10.

its wide-spread influence upon doctrine, 10.

Index.

339

Asceticism, the principle of-*

its small influence upon legislation, n, 12.

religious persecution in part due to, 1 1.

not consistently followed in matters of government, ir, 12.

consistent pursuit of it impossible, 13.

an example of a principle adverse to utility, 8.

limited in practice to private conduct, 1 1 .

prevents the universality of censure of the private offences, 303.
Ascetics, religious and philosophical, compared, 10.
Assignable individual, an, what meant by, 205 n.
Association, the principle of, 1 24 n.

pains of, 41 .

pleasures of, analysed and illustrated, 37.

pleasures and pains of the mind, the result of, 209 n.

Avarice, the term, an example of the figurative sense of the term motive,

99.
indical

dicates the motive of pecuniary interest when used in a bad sense,
104.

under what class of motives it falls, 104.

why properly termed a bad motive, 118, 119.

lust, vengeance, the restraining motives to, 168, 169.
Awkwardness, the pains of, analysed, 39.

B.

Bad, proper application of the term, 87.

intention, see Intention.

motive, see Motive.

tendency of an act, how ascertained, 31, 32.
Banishment, as a form of personal injury, 244, 245.

examples of offences by, 246 n.

as a punishment, considered, 191, 197.

when unequable, 191.

as a chronical punishment, 200.
Beccaria, his works noticed, 179, 329 n.
Behaviour, good, remission of punishment for, 200.
Beneficence, a branch of duty to others, 312.

how far a fit subject for legislation, 322, 323.

motives which prompt to, 312, 313.

Beneficiary, beneficiendary, the terms suggested to indicate the person

to take the benefit of a trust, 226 n.
Benevolence, pleasures of, in what they consist, 36.

under what circumstances the motive of may be repugnant to utility,

122.

imputed to the Deity, in what sense, 125.

enlarged, alone necessarily conformable to utility, 122.

and private, examples of their operation, 129.
the distinction between, illustrated, 135, 143.

public and private, contrasted, 122.

a tutelary motive, mode of its operation as, 143.

Bias, moral, religious, sympathetic, antipathetic, see Moral, etc.
Blasphemous, printing or speaking, under what class of offences it falls,

24671.
Blasphemy, 2891*.

z 2

34 Index.

Bodily conditions, influencing sensibility, 44, 45-47, 55, 57, 58.
Body, radical frame or temperament of, as affecting sensibility, 55, 56.

and mind, intimacy of the relation between, 56, 57.

offences affecting the, distinguished, 243.
Bonaparte, his Penal Code noticed, 180 n.
Branding, as a punishment, 200.
Bribery, nature of the offence, 240.

active, or bribe-giving, 240 and n.

passive, or bribe-taking, 240, 289, 290.

as an offence to which certain conditions are exposed, 262, 272, 2 74, 276,

278, 282, 289??., 290 n.

see also Presents.

Bubbles, or fraudulent companies, the offence of setting up, 253 n.
Burning alive, as a punishment, 181 n.

C.

Calamity, a, what, 26, 211.

offences through, 211, 245 n., 246 n.

breaches of sanitary regulations, an example of, 212.

precaution against, justifies the causing of mischief and makes punish-

ment groundless, 172.
Capital punishment, 196, 197, 200.
Caprice, the principle of, 1 3 n.

how far coincident with that of sympathy and antipathy, 13 n., 15 n.

illustrations of its influence, 13 n.

Catalogue of motives corresponding to that of pleasures and pains, 105.

see also Motives.

Catalogue personarum privilegiatarum, its purpose, 68 n.

Catherine II of Russia, attitude of her ministers towards trivial theological

controversies, 21 n.

Celibacy, as an offence, how classed, 288 n.
Certainty, as a quality of punishment, see Punishment.

and uncertainty of pleasure and pain, an important ingredient in their

value, 29.

Characteristicalness, as a quality of punishment, 192, 198 and n., 203 n.
Charity, to what class of motives it belongs, 113.
Child, the term, as indicating a legal relation, considered, 276 n.

stealing, as an offence, 276.

Childlessness, as modifying susceptibility to the influence of law, 54 n.
Christianity, its establishment due to the ascendancy of the Roman

commonwealth, 79 n.

Chronical punishments, examples of, 200.
Circumstances, etymology of the term, 77 n.

what, 76, 77 n.

attending an act, defined, 77 n.

reasons for their investigation, 76, 80.

states of which the perceptive faculty is susceptible in regard to, 7 1 .

their relation to consequences, modes of, 77.

illustrated, 78, 79 and nn.

limited extent to which perceptible, 79> 80.

attending an event, the author's method of analysis applicable to physical

as well as to moral science, Si n.

aggravative, 80, 308.

Index. 341

Circumstances, compensative, 90, 91.

criminative, 80, 90, 308.

evidentiary, 80.

exculpative, 80.

extenuative, 80.

pecuniary, see Pecuniary.

preventive, 90, 91.

influencing sensibility, see Sensibility.
Civil Code, see Code, Law.

Civil and penal law, see Law.

Civil and criminal, see Procedure.

Civil conditions, KC e Conditions.

Class, offence against a, 206.

Climate, its effect upon sensibility, 45, 61.

Code, a civil, its contents, 333.

a civil, the difference between a penal and, examined, 329, 333.

tee also Law.

Frederic, the, referred to, 333, 334.

a penal, its contents, 333.

limits between it and a civil, examined, 329, 333.
Coercion or restraint, one of the evils of punishment, 175.

or restraint, a form of offence against the person, 243.
Coercive Law, 330.

Coining, as an offence, 181 n.
Collateral, relationship, 257.
Command, ' every law a command or its opposite,' 332.

a coercive law a, 330.

Commensurability, as a quality of punishment, 191, 202.

Common sense, theory of a, as a moral standard, an example of the

application of the principle of sympathy and antipathy, 17 n.
Compassion, to what class of motives it belongs, 134.
Compensation or satisfaction for an offence, as rendering punishment

groundless, or as a reason for its abatement, 172.

an insufficient penalty for theft and robbery, why, 183 and n.

as a subordinate end of punishment, 171 n.

tendency to, as a quality of punishment, 195, 197.

lucrative, 197,

subserviency to, a quality of pecuniary punishment, 197.

vindictive, 197.

susceptibility to admit of, as distinguishing the various classes of

offences, 303-306.
Complex or compound, and simple offences, 211, 243,

see also Offences.

pleasures and pains, 41 n.

example of an analysis of, 42 n.

condition, see Condition.
Compulsion, as a ground of impunity, 175.

or constraint, as a form of offence against the person, analysed, 243.

simple injurious, an example of the offence of, 296.
sometimes includes wrongful menaceinent, 245 n.

Condition, a, elements in the conception of, 210, 211 n., 229, 232, 233,
255> 256)1., 290, 292, 293, 294.

a, may be either beneficial or burtbensome, or both, to the party

invested with it, 229, 294, 295.

342 Index.

Condition, a, implies a distinguishing appellation on the part of the person
invested with it, 232.

the rights and duties belonging to, considerable in duration, 233.

character of the services connected with, a distinguishing feature of,

233-

description of the services constituting a, 232.

the rights to services connected with, and those under contract or apper-

taining to property, distinguished, 233.

examples of a, 232, 294, 295.

how constituted by the law, 292, 293.

not an exclusive right, 293.

and relations not amounting to a, distinguished, 232, 233, 293.

regarded as an object of property, 210, 227, 230, 231.

contrasted with a right of property, 229, 293.

difficulty of distinguishing property and, 291.

an offence against, what, 210.

offences against, 255-296.

how to be classed, 227 et seq.

rules for distinguishing them from those against property, 232, 233.

and against property, sometimes substantially the same, 229, 233,

334-

why improper to class under those against property, 229.

filial, offences against, 276.

trust as a species of, 226.

and trust, their relations, 227, 228, 290.

public, a less expressive term than public trust, 228.

complex, that of parent a, 275.
Conditions, proper order of their treatment, 258.

classed as domestic and civil, 255.

domestic or family, how constituted, 255.

the physical power of the domestic superior their groundwork,

259 .
the legal relations they involve and their rationale, 258, 259, 260,

261.
offences touching, 261-266, 270-286.

civil, examined, 287.

their infinite variety, 287.

some features which distinguish them from the domestic, 294, 295.

involve no correlative relations with distinguishing appellations,

294, 295.
how constituted, 292, 293, 294.

their relation to trusts, to domestic conditions, and to rights of

ownership, 290, 291.
non-fiduciary, 292.
professional, 292, 293.
rank, as one of the, 292.
examples of, 294, 295.
offences touching, 295, 296.
Confinement, as a form of offence against the person, 244.

example of offences by, 246 n.
Connubial and post- connubial relations, 256.

see also Halations.

Connexion, in the way of sympathy and antipathy, see Sympathy and
Antipathy.

Index.

343

Consciousness, as to circumstances accompanying an act, what meant by,

7i-

false as to circumstances accompanying an act, what, 71.

the, or perceptive faculty, its relation to the consequences of an act, 89.

various states of, in regard to the circumstances attending an act,

89.

various states of, illustrated, 90-92.

state of the, importance of the investigation regarding, 95, 96.
its relation to intentionality, 91.
to the secondary evil of an act, 164.
character of the consequences of an act in great measure dependent

upon, 95.

demand for punishment dependent upon its state, 95.
Consent, on the part of an injured party, as rendering punishment ground-
less, 171, 172.

presence or absence of, its relation to the offences of theft, rape,

seduction, etc,, 251, 252, 253.
Consequences, their place in relation to the tendency of acts, 70.

material, what, 70.

alone worth regarding, 70.

primary and secondary, 152, 153.

may be mischievous and secondary beneficial, 157.

natural and artificial, 168, 169.

and intention usually correspond, 133.
Constitutional law, a brancli of a complete body of laws, 334.

its province, 334.

its relation to penal and to civil law, 334.

its matter how to be distributed, 309 n.

Contract, breach of, under what class of offences it falls, 249 w.

a, nature of the conception indicated, 279.

the utilitarian basis of the matrimonial condition, 279.

the matrimonial, modifications of which it is susceptible, 280.
Contractual relations, and those dependent upon condition, their differ-
ences examined, 233.

Copyright, the eujoyer of a, not invested with a condition, but with a
species of property, 293.

why regarded as property, 294?*.
Corporal injuries, simple and irreparable, 244.

insult, a complex offence, affecting both person and reputation, 247.
Corporate body, offences against the property of a, 252 n.
Corporation spirit, attachment, zeal or 'esprit de corp*,' 113.
Country scene, a, the pleasures of, analysed, 42 n.

Cowardice, to what class of motives it belongs, 116.

Crime, to be reprobated, on purely utilitarian grounds, 9, 137*.

Criminal law, 309, 330.

see also Law.

Criminative circumstances, see Circumstances.
Cromwell, Oliver, his supposed indifference to suffering, 57*

easily moved to tears, 57.

Cruelty, class of motives to which it belongs, 1 14.

to animals, rationale of legislation regarding, 31 in.
Culpa, meaning of the term, 94, 95, 95 n.

sine dolo, 94.

lata, levis, levissima, the expressions criticised, 94.

344 Index.

Curiosity, as a motive, 107.

its different effects illustrated, 107.

D.

D f Aguesseau, the Chancellor, his suggestion of the phrase ' droit entre les

gens,' 326 n.
Banger, a branch of the secondary mischief of an act, 153.

of a mischievous act, whence it arises, 155.

and alarm distinguished, 157.

of an act, due to the real mental attitude of the actor, 164.

physical, as impairing the influence of the penal sanction, 174, 175.
Death, the penalty of, see Capital Punishment.

Declaration, the, of Independence of the United States of America, 336 n.
- the, of Rights, of Massachusetts, 336.

of Virginia, 335, 336.

of North Carolina, 335.

the phraseology of these instruments criticised, 335, 336.
Defamation, the offence of, its nature analysed, 246.

political, how classed, 289 n.

reluctance under popular governments to submit it to penal legis-
lation, 319?*.

and see Reputation.
Defraudment, the offence of, 251, 308.
Deity, the, qualities attributed to, 125.

Delegatus non potest delegare, the maxim ridiculed, i$n.
Deliberation, as an indication of the disposition of an offender, 150.
Delicta, publica et privata, of Roman law, 300 n,
Delinquency, offences of mere, an.

and see Offences, Semi-public.

Denmark, a sect of religious enthusiasts there, noticed, 140.
Depravity of disposition, see Disposition.
Derivative evil of an act, what, 153.

pains of sympathy, among the pains of punishment, 1 76.
Derecho, a Spanish term for law in abstract, 324 n.
Descent, relationship by, 257.

Desertion, military, the offence of, 287 n.
Desire, pain of, a species of pain of privation, 38.

physical, the general term for a certain motive, 105.

sexual, the neutral term for a certain motive, 105 n.
Detainer, of immovables, a term of English law, 255 and n.

see also Detinue.
Detection, what meant by, 146.

fear of, as an element in the tutelary motive of self-preservation, 147.

the force of certain standing tutelary motives depends upon, 146,
147.

uncertainty of, as diminishing the efficacy of the penal sanction, 317.
Determinative, as a term for ' Motive/ 98 n.

Detinue, and detainer, as offences of English law, 250 n., 255 and n.
Detrectare militiam, meaning of the expression, 337, 238 n.
Detrectation, as a term for a certain mode of offence, 237, 238 n., 262

272, 274. '

'Dictates' or 'laws' of particular motives, convenience of the expression,

121.

Index.

345

Diet, scanty, why an efficacious punishment for offences through the

motive of ill-will, 196.

Disablement, as a result of punishment, 170, 171 ., 195, 196, 197, 202.
Disappointment, pain of, a species of pain of privation, 38.
Discoercive law, 330.
Discourse, acts of, see Act.
Disgrace, fear of, as a motive, 109.
Dishonour, fear of, 109.

pains of, see Ill-name.

Displeasure, the motive of, placed in the class of bad motives, 119.
under what circumstances social in its effects, 127.

a motive less constant in its operation than the motives of the self-

regarding class, 167.
Disposition, the, the general subject of, treated, 131-151.

what, 131.

an element in determining the general tendency of an act, 71.

its influence in the production of the secondary mischief of an
act, 164.

its effect upon alarm, 168.

1 the sum of the intentions/ 142.

penal law how far concerned with, 132.

good, bad, depraved, virtuous, vicious, beneficent, meritorious, perni-
cious, mischievous, sound, firm, application of the terms to, 131, 132.

indications concerning, afforded by the strength of temptation, 148.

depravity of, indicated by an offence, rules for estimating, with
illustrations, 149, 150.

indications of, afforded by the deliberation accompanying the
offence, 150.

its character a matter of inference, 132.

the grounds of inference regarding it examined and illustrated,

I33-I4 1 -
its investigation, why important, 151.

a good, coupled with a mischievous habit, impossible, 133 n.
Division of offences, see Offences.

Dolus, the term in Roman law, 94, 95, and 95 ?z.
Droit, a French term for law in abstract, 324 n.

entre les gens,' instead of ' droit des gens,' suggested by the Chancellor

D'Aguesseau, 326 n.

Drugs, sale of unwholesome, under what class of offences it falls, 246 n.
Drunkenness, its place in a classification of offences, 246 n.

and see Intoxication.

Duel, refusal to fight a, why associated with cowardice, 109 n.

a, bribery at an election, munificence in charity, war, alike results of a

single motive, no.

Duelling, motives to and against, examined, 109 n.
Dum piers, a religious society, noticed, u.
Duration, as an element in pleasure, and pain, 30.

illustrated, 32.
Duress, 254 n.

and see Compulsion.

Duty or obligation, implied in the conception of right, 22471., 2257?.

absolute, one without reciprocity of right, 290.

relative, 290.

breach of, as a term for a form of offence, 262, 263, 266, 271, 272, 274,

276, 278, 282.

Index.

Ease, love of, as a motive, 117.

as a motive, among those most constant in their operation, 167.

different acts to which it conduces, 117, 118.

as an occasional tutelary motive, 146.

appropriate punishment for offences induced by, 196.
Economical effects of a religious persuasion, 64 n.
Education, a branch of the art of government, 311.

public, 312.

private, 270, 312.

physical, mental, 6 1.

as influencing sensibility, 45. 60, 6r.

as influenced by religious profession, 64.

Election, the doctrine of, as a substitute for a moral standard, 17 n.
Elopement, as an offence, 262, 271, 272, 274, 276.
Embezzlement, as an offence, 250, 252.

appropriate punishment for, 196.

breach of trust, an element in the offence of, 250.

and theft, the different penalties for, their rationale suggested, 172 n.
Emigration, as an offence, 288 .

Endamagement, an offence against property, 250.

and see Property.

Enjoyment, pleasures of, and those of expectation, distinguished, 36, 37.
Enmity, pains of, analysed, 39.

pains of, and those of malevolence, distinguished, 411?.
Ennui, nature of the pain indicated by the term, analysed, 39 n.
Enthusiasm, or enthusiastic zeal, in.

Entry, forcible, 254, 255.

Equability as a property of punishment, 190, 191.

Equable, punishment, what, 190.

Equity, natural, as a moial standard, 17 n.

Error of opinion, fitting mode of dealing with it, 177.

culpabilis, and other phrases, suggested to indicate certain mental

attitudes, 95 n.

Espionage, as a public offence, 28672.
Esprit de corps, English equivalents for the phrase, 113.
Esse, motive in, what, 99, 100.
Ethics, in general, defined, 310, 312.

private, what, 270, 309, 310.

and legislation, limits between, 309-323.

the leading branches of, 312.

place of, in cases unmeet for legal punishment, 314.

the rules of, their dependence upon preceding legislation, 322.
Events, the consequences of acts, 77.
Evidentiary circumstances, 80.

Evil and good, of a third order, as the result of an act, 163 n.
Example, a leading end of punishment, why, 171, 193, 195.

a more important object in punishment than the reformation of the

offender, 200.

Exciting cause, what so termed, 44.
Exculpative circumstances, what, 80.
Executive, the, a branch of sovereign power, 2*9 .

Index. 347

Exemplar! ty, as a property of punishment, 193, 194, 195, 200, 202;
Exemption from punishment, various grounds of, and their rationale

examined, 173, 174, 17471, 175, 176, 177.
Expectation, pleasures of, analysed, 36, 37.

or apprehension, pains of, 41.
Extenuative circumstances, what, 80.

Extent, as an element in the value of pleasure and pain, 30.
Extortion, the offence of, analysed, 251.
Extra-regarding and self-regarding pleasures and pains, 41, 4 in.

F.

False consciousness, see Consciousness.

news, dissemination of, an example of a semi-public offence, 246 n.,

253
Falsehood, as an element in offences against property, 247.

offences by, one of the divisions of multiform offences, 208.

proper method of classifying, 207 w., 223.

their division?. 221, 222.

their subdivisions, 222, 223.

their points of agreement and difference, 221, 222.

and concerning trust, their connexion, 242.

unproductive of material results, no offence, 223.
Fame, love of, as a motive, see Reputation.

Family spirit, or attachment, the motive to which it belongs, 113.

spirit, or attachment, its influence, 54.

or domestic relations, 255-286.

natural, 256, 257, 258.
Fanaticism, or fanatic zeal, motive indicated by the terms, in.

lack of restraining motives to, i68n.

Fecundity, or fruitfulness, an element in the value of pleasure and pain,

30.
Felton, his assassination of the Duke of Buckingham used to illustrate the

relation borne to its consequences by the circumstances attending
an act, 78.

' Fiat justitia ruat ccelum,' the maxim ridiculed, 14 n.
Fidei-commissarius, 226^.
Filial condition, the, offences concerning, 276-278.

offences concerning, features which distinguish them from offences

against other conditions, 276, 277.
offences concerning, their correspondence with offences touching

the condition of parentality, 277.
Filiality, or filiation, the terms considered, 2769*.

the relation of, 257.
Fine, see Punishment, pecuniary.
Firmness of mind, as influencing sensibility, 48, 48 n.
' Fitness of things,' the, as a moral standard, an example of the application

of the principle of sympathy and antipathy, 17 n.
Forbearance, service of, 292.

Force, as an element in offences against property, 248.
in offences against the person, 253.
in the complex offences concerning property and person together,

354* 3 55-

the element of, as distinguishing robbery from theft, 251.

348 Index.

Force, physical, the groundwork of the famify relations, 259 n.

the public, offences against, 218, 287 n.

and see Offences.

Forcible seduction, see Seduction.

entry, see Entry.

detainer, see Detinue, Detainer.
Foreigners, offences against, 28671.
Forgery, the offence of, 222.
Form of laws, its importance, 335 n.

of laws, mischievous results of its present imperfection illustrated,

335 n -
Fraud, the conception analysed, 251.

mercantile, its lenient penal treatment in legal systems, as contrasted

with that of other offences of the same class, rationale of suggested,
172*1.

against the coin, 181 w., 183.

sale of bad bread an example of, 296.

Fraudulency, as characterising a species of offences against property,

247.
Fraudulent, the term, when applied to offences against property, 247.

obtaiument or defraudment, 251.
Frederic II of Prussia, his Code, 333 n.

Frugality, as a quality of punishment, 194, 195, 196, 202.

G.

Gaming, as an offence, 253 n., 29372.

Gentoo religion, regard shown by, for the interests of the inferior animals,

31071.

Gentilhomme, the condition of, in what it consists, 294.
Gesetz, its meaning contrasted with that of Beoht, 32471.
Glory, love of, 108, no.

see also Beputation.

God, the will of, as a standard of right and wrong, 21, 22.

see also Theological principle.

the fear of, the love of, under what class of motives they fall, in.

offences against, distinct from those against religion, 22ow.
Gondemar, Spanish ambassador at the Court of James I, 32771.
Good, proper sense of the term, 31, 87.

and bad sense, meaning of the phrases, 103.

of a third order, 1637*.

as the result of an act producing primarily evil, example of, 157, 16371.

producing primarily good, example of, 1637*.

intention, see Intention.

motive, see Motive.

name, pleasures of a, in what they consist, 35.

as a motive, 108.

different terms for, 108.

varying effects of, illustrated, 109.

see also Beputation.

tendency of an act, how ascertained, 31, 32.

will, placed in the class of 'good ' motives, 119.

classed as a purely social motive, 121.
standing tutelary motive, 143,

Index. 349

Good-will, the motive most conformable to utility, 121.

under what circumstances its dictates maybe adverse to utility, 122.

tendency to deprive of the services consequent upon, the gist of

an offence against reputation, 210.
Government, the, what, 218.
its necessity, 214/1.

its end, 70.

the operations of, their proper aim, 215.

forms which attacks upon may assume, 214, 215, 217.

as an influence upon sensibility, 63.

the educational influence of, 63.

operates by punishment and reward, 70.

the art of, what meant by, 310.

comprises legislation and administration, 311.

self, the province of private ethics, 270, 310.
Gratitude, to what class of motives it belongs, 113.

Greek nomenclature for the classification of offences, its convenience ad-
vocated, 287, 288.

Grief, external indications of, fallacious, 57.
Grotius, his works noticed, 329 n.
Guardian, and ward, the relation of, one of the family conditions, 260.

and ward, the relation of, its rationale, 266, 267, 268, 269.

nature, extent, and duration of his powers and duties, 269, 270, 271.

detail of his powers insusceptible of exact definition by legislation, 270.

points of resemblance between the condition of, and that of parent and

husband, 275, 280.

the condition of, offences affecting, 270-272.
Guardianship, a private trust, 270, 272.

the perpetual, of women, 268 n.

offences affecting, 270-272.

who liable to be placed under, 267, 268.

H.

Habit or practice, a, what, 12471.

or practice, a, distinguished from a repetition of acts, 75.

distinguished from a repetition of acts, and from an aggregate
of acts, 75 w.

of offending, to be considered in the adjustment of punishment to

offences, 183, 184.
Habitual occupation, as influencing sensibility, 44, 51.

offences as a subject of punishment, 183.
Happiness, in what it consists, 70.

general ethical rules upon which it depends, 312.
- concurrent requisites to the production of, 267.

the principle of the greatest, as a phrase alternative to that of the

principle of utility, i n.

Hardiness of body, as influencing sensibility, 44, 46, 47.
Harmony of sound, in legal maxims, preferred to sense, 14, 15.
Hastings, Warren, referred to, 1471.
Health, as influencing sensibility, 44, 45.
Heedless act, a, what, 89.

Heedlessness, a mode of unadvisediiess as to the circumstances attending
an act, 92.

350 Index.

Heedlessness, Latin phrases indicating, 95 ^

its influence upon alarm, 165.

in the exercise of judicial trust, 286 n.
Helvetius, referred to, 104^.

Hercules, his deliverance of Theseus discussed, 1 13 n.

Heresy, as an offence, 289 .

Hindoo, see Oentoo.

Homicide, its place in a classification of offences against the person, 245.

through the motive of religion, not therefore innocent, 165 w.
Hunger and thirst, as motives, 105 and n.

Husband, what, 278.

rationale of the powers with which he is invested, 279.

relation of to the wife, a complex condition, 280.

the condition of, its resemblance to and difference from that of parent,

280.

and wife, the relation of, examined, 278.

its utilitarian basis, consent, 279.

involves a reciprocity of right and duty, 279.

different rules regarding it, in Mahommedan and in Christian

countries, 280, 281.

offences to which the condition is liable, 280-282.
modifications of which the contract between them is susceptible, 280,
281.

I.

Idiosyncrasy, the term explained, 56 n.

Idleness, as an offence, 25311., 288 n.

Ignominy, fear of, nature of the motive, 109.

Ignorance or knowledge, as influencing sensibility, 47, 48.

Ignorant, what meant by, 48.

Ill- name, the pains of, terms indicating, 39.

analysed, 39.

positive, illustrated, 39 n.
Ill-will, see Malevolence.
Imagination, pleasures of the, in what they consist, 36.

pains of the, 40, 41.

Immoral publications, the offence of issuing, how classed, 289 n.
Immovables, examples of offences specially concerning, 245 n., 254, 255.
Imperfection, bodily, as influencing sensibility, 44, 47.
Impey, Sir Elijah, referred to, 14 .
Imprisonment, as a punishment, 197.

example of some of the evils resulting from, 42 n.
Imprudentia, a term for unadvist- dness, 95/1.
Impunity, the grounds of, 171-177.

see also Punishment, cases unmeet.
Incendiarism, as an offence, 181 n. t 255 n.
Incest, as an offence, 247 n.

Inclination, bent of, as influencing sensibility, 49.

and bias of sensibility, distinguished, 49.
Incontinence, as an offence, 247 w.
Incorporeal objects, regarded as property, 231.

property, copyright an example of, 293, 294.

condition, reputation, liberty regarded as species of, 231.

Index. 351

Inducement, a more comprehensive term than motive, 97 n.
Industry, paralysis of, among the evils of a third order resulting from an
offence, 16371.

stimulus to, among the beneficial consequences of a third order flowing

from a good action, 163 n.
Ineffloaciousness of punishment, 172-175, 315.

see also Punishment.

Infamy, fear of, nature of the motive, 109.

Infanoy, as impairing the efficacy of punishment, 173, 315.

rationale of its subjection to guardianship, 267.
Informers, prej udice against, irrational and mischievous, 1 30.
Infortunium, meaning of the term, 94.

Ingratitude, whether a fit subject for penal legislation, 318.
Injury, simple lascivious, and rape, distinguished, 253.
Inobservantia, a term for unadvisedness, 95 n.
Insane, the, calculate consequences, 188 and n.
Insanity, as a ground of impunity, 173.

as affecting sensibility, 51.

little variety in, 51.

rationale of its subjection to guardianship, 267.
Inscitia, as a legal term, its meaning, 95 n.

culpabilis and inculpabilis, the expressions suggested, 95 n.
Insolvency, nature of, as an offence, examined, 248 and n.
Instruction, the proper remedy for offences of opinion, 177.
Insult, corporal, as an offence, 247, 254.

Insulting menacement, 247, 254.

Intellectual poweis, the, strength of, as influencing sensibility, 44, 48.

faculty, the, and the will, contrasted, 97.
Intention, what it concerns, 82.

identified with 'will/ 82.

its relation to the consequences of an act, 71, 133,

and motive, confused, 93.

motives the causes of, 142.

the terms good and bad as applied to, considered and illustrated, 87, 88,

92, 93, 120.

good, though both motive to and consequences of the act, bad, 93, 94.

innocent, when may be so termed, 94.

as determining the character of an oftence, illustrated, 250, 251.

absence of, a ground of extenuation, 96,
Intentional, its meaning, 82.

when synonymous with voluntary, 82.
Intentionalitas, the term suggested, 95 n.
Intentional! ty, the general subject of, examined, 82-88.

uses of a minute analysis of, 84 n.

importance of the investigation, 133.

its connexion with consciousness, 91.

its relation to the various stages of an act, 83.

the mental attitude in respect of, minutely analysed, 83 n.

in reference to an act, and to the consequences of an act, distinguished,

83.

its influence upon the mischief of an act, 163, 164.

its various modes, 84, 85.

illustrated, 85, 86, 87.
Intentions, the consequence of motives, 93, 142.

Index.

Intentions :

disposition, the sum of the, 142.
Interest, self, the only adequate motive, 313.

Interesting perceptions, a general expression for pleasures and pains, 33.
Internal jurisprudence, see Jurisprudence.
International, a novel term, 326.

law, a phrase more expressive than 'law of nations,' 326.

its province, 327.

distinguished from internal, 327 n.

Intoxication, as illustrating the forms which the mischief of an act may
assume, 159.

a temporary insanity, 173.

as rendering punishment inefficacious, 173, 315.

not a ground of absolute impunity, 17311.
Inundation, criminal, as a semi -public offence, 255 n.
Invasion, the offence of contributing to bring about, 215.
Investitive event, or circumstance constituting the ground of title,

248.

and divestitive, the terms, 289 n.

Involuntariness as a ground of exemption from liability, 175.
Involuntary act, an, why not alarming, 164.
illustration of, 89 n.

see also Unintentional.

Irritability, in relation to sensibility, what, 46.

contrasted with hardiness, 46.

with firmness, 48.

J.

James I, his antipathy to the Arians, 20 n.

his book against Vorstius, 20 n.

his 'Counterblast to Tobacco,' 21 n.

Judge, the, his office in giving effect to circumstances influencing sensi-
bility, 65, 182.

Judge-made law, English, its introduction into India reprobated, 1411.
' Judgment, 1 a, what, 26 n.
Judicial sentence, beyond the law, as rendering punishment inefficacious,

I73>3i5-

Judicial trust, see Trust.
Judiciary or common law, xii, 335 n.
Jurisprudence, its branches, 323-330.

ancient, and present (or living), 328.

censorial, 324.

civil and penal, 329.

expository, 324, 325.

authoritative, or unauthoritative, 324, 325.
history of, its uses, 328, 329.
internal, its subject-matter, 327.

subdivided under national and provincial, 327.

distinction between it and international, illustrated, 327 n.

local (or particular), 325, 327, 328.

municipal, senses of the term, 32871.

statutory and customary, terms indicating the mode of expression of

the laws, 329.

universal (or general), 325.

Index. 353

Jurisprudence , u ni versal

examples of topics falling under, xi, 326.

circumstances determining the distribution of its subject-matter,

324.

Jus, meaning of the term contrasted with that of ' Lex,' 324 n.
Justice, the dictates of, what, 126 n.
its dictates and those of benevolence, supposed conflict between, 1 25,

an offence against, what, 213, 218.

and police, intimate though distinguishable connexion of their functions,

2i6n.

offences against, 286 n.
Justinian, his legislation noticed, 324 n.

K.

Knowledge, as influencing sensibility, 44, 47,

Knighthood, as a civil condition, the elements constituting it, 292.

Labour, penal or hard, as a reformatory punishment for certain offences,
196.

as a chronical punishment, 200.
Lage, the Anglo-Saxon term, its meaning, 324.
Iiasciviousness, motive indicated by the term, 106.
Law, conception of, its necessary imperativeness, how obscured, 332.
implies that of an offence, 333.

science of, its relation to the art of legislation, xiii.

a branch of the * logic of the will,' xiii.

a command or its opposite, 332.

civil, its relation to penal, vii, 309, 333.

penal, its unmethodical character in systems generally, 300 n.

its subject, 70.

common or judiciary, xii, 335.

its necessary uncertainty, 335.

coercive, discoercive, declaratory, simply imperative, punitory, their

features and relations explained and illustrated, 330, 331.

constitutional, a necessary branch of a complete body of law, 334.

its relation to the other branches of the body of law, 334.
its province, 334.

a, ex post facto, punishment inflicted by, inefficacious, 173, 315.

a, unpromulgated, 173, 315.

judge-made, 1471.

moral obligation of obedience to bad, the question suggested, 322 n.

obligation the necessary consequence of law in its operation, 258.

the term, its abstract and concrete senses, 32411.

terms in different languages to indicate, 324 n.

lack of an English word to express the distinction, 324 n.

a, what, 330 n.

a, distinguished from a statute, 330 n.

a declaratory, not strictly a law, 330 n.

the, what indicated by the term, 324.
Laws, the result of mutual fear, 311 n.

BKNTHAM A &

354

Legge, the Italian term for law in concrete,* 324.

Legislation, art of, a branch of the science of jurisprudence, 323.

a branch of the art of government, 311,

and administration, distinguished, 311.

virtues and vices as such, why not a fit subject for penal, 316-323.

and ethics, their relation, the general subject treated, 309-323.

the form of, its importance, 335.

its present imperfection, 335.

results of its unscientific character, illustrated, 335.

limits of its interference with human action, 270, 314.

religion as a subject of, see Heligion.

the science of, scheme of a complete series of works upon, x.

what it properly comprises, vii,

its aim or province, 170, 323.

Legislative, the, a branch of sovereign power, 28971.
Legislator, rules to guide him in the adjustment of punishment to offences,

182.

Legitimation of children, by the subsequent marriage of parents, 276.
Ley, a term for law in concrete, 324 n.
Libel, what, 221 n.

see also Defamation.

Liberty, regarded as an incorporeal object of property, 231.

a corresponding term to privilege, immunity, exemption, 263.

Life, the love of, among the motives most constant in their operation, 167.

Lineage, see Bace.

Loi, a term for law in concrete, 324 n.

Love, various senses in which the term is employed, 106 n., 113.

Louis XIV, his religious persecutions, 140.

his 'Code Noir/ 311 n.

Lust, an unneutral term for a certain motive, 104, 118, 119.

neutral phrase for the motive indicated by the term, what, 105 n.

why properly termed a bad motive, 118, 119.

M.

Madmen, see Insane.

Magistrate, the parent a kind of deputy of the, 63.

the, a kind of tutor to the members of the State, 63.

see also Government.

Mahommedan religion, the, regard for the inferior animals shown by,

310 n.
Malevolence, synonyms for the term, 36.

pleasures of, in what they consist, 36.

motive corresponding to, various terms for, 114.

the motive of, examples of the different actions produced by, 114, 115.

as a motive not always indicative of a bad disposition, 141.

the pains of, analysed, 40.

Malo ammo, meaning of the expression, 95 n.

Mandeville, referred to, 104 n.

Maria Theresa, the Empress, her penal legislation noticed, 333.

Marital condition, nature of the obligations it involves, 278.

see also Husband.

Married state, the, as influencing sensibility, 54 n.
Marriage, relationship by, what so termed, 257.

Index. 355

Marriage, nature of the relation, examined, 378-281.

its basis, contract, 279.

chance of advancement through, among the advantages incident to

certain relations, 285.

incapacity to contract, among the disadvantages incident to certain

relations, 286.
Master, the, condition of, 261-263.

under what circumstances one of obligation, 261.

points of resemblance between it and that of parent, and of husband,

275, 280.

involves no fiduciary relation, 262.
offences to which it is exposed, 261-264.

offences to which it is exposed, their correspondence with those
touching the condition of servant, 265.

and servant, rationale of their legal relations, 260.

modes of the relation, 263.

and apprentice, the relation of, a civil condition, 262 n.

a mixed condition, 262 n.
Mastership, see Master the condition of.
Material, meaning of the term, 70, 77, 98.

circumstances, tee Circumstances.

consequences, see Consequences.
Maternity, 257, 276/1.
Matrimonial contract, 280.

relations, 280.

see also Husband and wife.

Means, a man's, what comprised under the term, 52.

the relation borne by, to wants, constitute the ' pecuniary circumstances,'

5*-
Mechanical invention, as a consequence of the motive of the love of ease,

118.
Member of Parliament, his character why likely to be comparatively good,

124.
Memory, pleasures of the, 36.

pains of the, 41.

Menace, see Menacement, Threat.

Menaoement, as a form of offence against the person, 244.

wrongful, 245 and n.

how related to restrainment and compulsion, 246 n.
examples of semi-public offences by, 246.

insulting, a complex offence, against person and reputation, 247, 254.
Mental conditions as influencing sensibility, 47, 48, 51, 56.

injuries, simple, what, 244, 245, 246 n.

- attitude, its relation to the secondary evil of an act, 163, 164, 165.
Mercantile fraud, see Fraud.
Method, logical, its utility, 204 n.

the value of that adopted in the division of offences, 299-302.
Military, or public force, the, offence against, 217, 286 n.
Militiam detreotare, meaning of the expression, 237 n.
Mind, act of the, what, 47.

radical frame or temperament of the, as influencing sensibility, 55.

and body, both alike objects of offence against the person, 243, 245 n.

their intimate relation, 56.
Misadvised act, a, what, 90.

A a 2

356 Index.

Misadvisedness as to the circumstances accompanying an act, modes
o 90.

Latin terms for, 95 n.

its influence upon secondary mischief, 165.
Mischief of an act, what, 152.

primary and secondary, 153, 302, 304, 305, 306.

either original or derivative, 153, 305.
the secondary, of what it consists, 153.
how influenced by disposition, 1 68.
when at its maximum, 165.
its first branch (alarm) sometimes, its second (danger) always,

contingent, 159.

example, showing the various forms it may assume, 154.
examined, by reference to its nature, its cause, the party the object

of it, and the forms it may assume, 158, 159.
self-regarding and extra-regarding, 159.
private, semi-public, public, 159.

its forms illustrated, in the case of intoxication and in the non-
payment of a tax, 159, 1 60.

of an offence, affected by the character of the motive, 130.

of a third order, as the consequence of an act, 163 n.

where none, punishment groundless, 171.

where outweighed, punishment groundless, 171.

under what circumstances it is outweighed, 172.

none, where consent of the sufferer given, 171.

character of the, caused by offences of the different classes, 302-307.
Mischievous act, consequences of a, 152-169.

how one tends to produce another, 155.
Mis-supposal, a, what, 90.

as a ground of extenuation, 96.

or mistake as a ground of exemption from punishment, 1 74.

its influence upon the secondary mischief of an act, 165.

importance of its investigation, 133.
Mistake, see Mis-supposal.
Monarchy, pure and mixed, 290 n.

Monastic condition, a possible example of a useful relation of absolute

duty, 290.
Monopoly, 232.

copyright a species of, 293.

Montesquieu, his works noticed, 181, 185 w., 192, 32911.

his speculations on the theory of punishment, noticed, 185 n.
Moral influence, see Ethics.

lesson, how punishment operates as a, 184.

sanction, the, see Sanction.

pleasures of, see Good-name, Reputation,
pains of, see Ill-name.

sense, the theory of a, an example of the application of the principle of

sympathy and antipathy, 1 7 n.

principles, mischievous, see Opinion.

sensibility, what, 49, 50.

and moral bias, distinguished, 50.
Morals, private, see Ethics.

Moralists, favour shown by some to the ascetic principle, 9.
Moravians, a religious society noticed, n.

Index. 357

Motion, as related to intentionality, 83 n.
Motive, the general subject of, considered, 97-130.

the general subject of, utility of its investigation, 97, 129, 130.

the term, its widest sense, 97.

ambiguous sense of, 98.

figurative and unfigurative senses of, 98.

' inducement ' a more comprehensive term for, 97 n.

merely pleasure or pain operative in a certain manner, 101 n.

necessarily refers to action, 99.

the cause of intention, 88, 142.

mode of its operation so as to cause action, 99.

practical, what, 98.

to the understanding, how it may influence the will, 101.

interior and exterior, 99.

in prospect and in esse, 99, 100, 101.

or cause productive of action, to be distinguished from ground of ap-

proval of action, 22, 23.

or temptation to an act, what constitutes it, 41.

its tendency to cause a repetition of like acts, how calculated, 167.

its relation to the general tendency of an act, 7 1 .

its place in furnishing indications as to the disposition, examined, 1 34-

141.

dependence of the disposition upon it, 142.

general efficacy of a species of, how measured. 167.

the reformatory character of punishment, how related to, 195.

good and bad, the terms as applied to, 101, 102, 102 w., 103, 118, 119,

1 20, 129, 130, 166, 167.

inconvenience of so classing, 119
none constantly so, 101-105.

good or bad, none constantly so, demonstration of this proposition, why

difficult, 103.

none constantly so, illustrations of the proposition, 106, 107, 108,

109, no, 118.

under what circumstances motives may be so styled, 102, 118, 120.
only by reference to its effects, 102.
by reference to the resulting intention, 120.
what motives may be so distinguished, 119.

the same, may produce any sort of action, 102, 103, 118, 128.

illustration of this, 106-1 18.

relation of, to the secondary mischief (alarm and danger) of an act or of

an offence, 130, 164, 165, 166.

goodness of, does not take away but sometimes enhances the secondary

mischief of an act, 165, 166 and nn.

badness of, does not take away the secondary good consequences, 166.

when an aggravation of the mischievousness of an act, 166.
the degree of aggravation produced by, how calculated, 167.

bad, sometimes productive of less secondary mischief than good, 166 n.
Motives, with what description of, the analysis is concerned, 98.

- catalogue of, corresponding to those of pleasures and pains, 105-1 21.

names applied to, often beg the question of the quality of the, 104.

advantage of neutral appellations for, 105 n.

coercive, what meant by, 240.

conflict among, and illustrations, 127, 128.

which most frequently in conflict, 128.

Index.

Motives

dissocial, 120, 121.

their place in the order of motives, 127.

not necessarily so in their origin and tendency, 127.

acts of bad tendency commonly due to them or to those of the self-
regarding class, 128.

acts committed through, why less alarming than those actuated by
self -regarding motives, 167 and n.

impelling, what meant by, 128.

order of pre-eminence among, 121-127,

most generally operative, which, 167.

restraining, what meant by, 128.

their force how weakened by a past offence, 155,

seducing or corrupting, 142.

illustrated in the case of bribery, 240.

self-regarding, 120, 121.

their place in the order of, 127.

acts of bad tendency, commonly due to them or to the dissocial,

128.
an act committed through, why more alarming than one actuated

by a dissocial motive, 167.
the most influential, 167.

social, purely social, semi-social, 120, 121.

as standing tutelary motives, 147, 148.

tutelary, preservatory, or preserving, 142.

constant or standing, 143-145.

force of the, what constitutes it, 155.
occasional, 142, 145.

what class of motives commonly operate as, 145, 146.
Movables, examples of offences specially affecting, 254, 255.
Multiform, or anomalous offences, see Offences.
Mutilation, as a punishment, 200.

N.

National interest in general, offences against the, 214, 215, 289 n.

wealth, offences against the, 288 ., 296, 306.

tendency of self-regarding offences to become such, 306.
Natural arrangement of the subject-matter of a science, 299, 300.
born subject, the condition of, how constituted, 294.

justice, as a moral standard, its value, 17 n.

relations, what meant by, 256.

contiguous and uncontiguous, 256.

Nature, the law of, as a moral standard, a form which the principle of
sympathy and antipathy has assumed, 17 n.

the law of, sometimes regarded as opposed to the principle of utility,

17 n.

offences against, meaning of the phrase, 303 n.

self-regarding offences, why regarded as offences against, 306 and n.

repugnancy to, what meant by, 17 n.

Necessity, a term sometimes applied to the motive of self-preservation,

117.
Neighbourhood, offence against a, 206.

Index. 359

Nomenclature, the adoption of a novel, in the classification of offences

explained and defended, 298.

derived from the Greek, for offences against trust, 287, 288, 289 nn.
Novelty, the pleasures of, under what class of pleasures they fall, 34 n.
without corresponding positive pains, 39.

O.

Obligation, the conception of, 224, 225, 258, 325, 331.

or duty, implied in the conception of right, 224, 225.

legal, how constituted, 226 n.

the imposition of, the mode by which the law operates, 258.

how enforceable, 258.

Obligations, their place in Roman law, 334.
Occupation, habitual, as influencing sensibility, 51.
Offence, what, 205, 309.

the creation of coercive law, 330 n., 331.

mischief of an, in what it consists, 41.

affected by the nature of the motive, 130.
Offences accessory, 240, 242.

anomalous, see Multiform.

classified by reference to the number and determinateness of the persons

the objects of attack, as private, semi-public, and public, 205, 206
and n., 207.

affecting the body and the mind, distinguished, 243.

classes of, their distinguishing features, 302 308.

through calamity, a mode of semi-public offences, an, 212.

examples of, 245 n.

against a class or neighbourhood, 206 ; see also Offences, semi-public.

complex or compound, an, 240 if., 343, 253, 254, 255.

concerning condition, a division of private offences, 210.

rules for distinguishing, 232, 233.

why not classed under offences against property, 227, 229.

trust and property, why placed under separate divisions, 226-229.

their connexion "considered, 227.
civil, 295, 296.
domestic, 261-266, 270, 286.

and see Conditions.

also Filial, Guardian, Husband, Master, Parent, Servant, Ward,

Wife.

compensation, susceptibility to admit of, as a characteristic of the dif-

ferent classes of, 303-300.

in lieu of punishment for, in the different classes of, 304, 305, 307.

division of, the general subject treated, 204-308.

method pursued in it explained and its advantages exhibited, 20411.
296, 299, 300, 301, 302.

delinquency, of mere, a mode of semi-public offences, an, 245 n.

their correspondence with private offences, 212.

extra-regarding, 206.

falsehood, by, a division of multiform or anomalous offences, 207, 207 .,

ao8, 307.

their place in a systematic arrangement of offences considered,
207 n., 308.

360 Index.

O fife noes, falsehood, by

assume different appellations according to special circumstances, 223.

their sub-divisions, 222, 223.

their resemblance and difference inter se, 221, 222 and n.

their connexion with offences against trust, 242.

some characteristic features of, 308 and n.

individuals, against assignable, or private offences, see Offence8, 1 Frivate.

intransitive and transitive, 207.

justice, against, a division of the clasp of public offences, 213, 218.

military force, against, see below, Public force.

mischief, nature of, caused by the different classes of, respectively,

302-308.

motive, importance of its investigation in relation to, 130.

MULTIFORM, or heterogeneous, the fifth class of offences, 207.

termed also anomalous, 208 n.
irregularity of the class, 208 n.

the proper methodical classification of the subject matter of the class
considered, and a re-arrangement suggested, 207 n., 308 and n.
characteristic features of the class of, 307, 308.
the divisions of, 208.

their relation to offences of other classes, illustrated, 308 and
tee also Falsehood, Trust.

national interest in general, against, a division of public offences, 214,

215, 221.

wealth, against, 217, 219, 288 n. t 306.
felicity, against its increase, 219, 288 n.

nature, against the law of, see Nature.
- neighbourhood, against a, 206.

of opinion, punishment for, why needless, 177.

person, against the, as a subordinate division of the classes of offences,

208, 210, 211, 243-245, 253-255.

population, against, a division of the class of public offences, 217, 219,

288 n., 306.

police, the preventive branch of, against, a division of the class of public

offences, 216, 218, 287 n.

PRIVATE, or against assignable individuals, the first leading class of

offences, 205,

their divisions, 208-211.
analysis of, into genera, 242-296.

why carried no further than Class I, 242.
limits between, and semi-public and public offences, difficult to

trace, why, 207 n.

distinguished from those of other classes in respect of
the persons they affect, 302.

the nature and extent of the mischief they cause, 302, 303.
their susceptibility to admit of compensation, 303.
their susceptibility to admit of retaliation, 303.
the more or less of localism of their features with a view to

description, 303.

the nature of the preventive or remedial measures they de-
mand, 304.

the extent of the disapproval they excite, 303.
the presence or absence of a special interest in their prosecution
on the part of individuals or classes, 303.

Index. 361

Offences, PRIVATE, distinguished from those of other classes in respect of
the circumstances which transform them into offences of other
classes, 303, 304.

prosecution of, motives which commonly prompt the, 166 n.

property, against, as a subordinate division of the classes of offences,

208, 209, 247-252, 254, 255 and n.

forms of, 247-252, 254, 255 and n.

PUBLIC, or against the State, the fourth leading class of offences, 207.

their divisions, 213-221.

their genera or inferior divisions displayed, 286 n.-2<)O n.

their connexion with private and semi-public offences, 207 n.

characteristic features of, 306, 307.

and see above, Offences, Private, distinguished, etc.

or military force, against, a division of the class of public offences,

217, 219, 287 n.
wealth, against, a division of the class of public offences, 217, 219,

288 n.

trust, against, 228.
see also Trust.

religion, against, as a division of the class of public offences, 214, 219,

220, 220 n., 289 n.

see alto Religion.

reputation, against, a subordinate division of the classes of offences, and

the forms they may assume, 210, 246, 247 and n. 9 253, 254 and nn.

see oho Heputation.

Roman law, their place in, criticised, 334.

external security of the State, against the, a division of the class of

public offences, 213, 286 n.

SELF-REGARDING, the third leading class of offences, 206, 207, 21 a.

admit of divisions similar to those of private offences, 212, 213.

acts which constitute, open to dispute, 213.

examples of such offences, 241, 246 n., 247 n., 253 w., 254 .,

282 n.
their characteristic features, 305, 306.

and see above, Offences, Private, distinguished, etc.

SEMI-PUBLIC, the second leading class of offences, what they comprise,

206, 211.

through calamity, 211.
necessarily concern future mischief, an.
their divisions, 211, 212.
of mere delinquency, 212.

examples of, 245 ., 246 n., 247 n., 252 ., 253, 255 n.
their characteristic features, 282 n., 304, 305.
and see above. Offences, Private, distinguished, etc.

sovereignty, against the, a division of the class of public offences,

214, 218.

examples of, 289 n.

State, against the, or public offences, see Offences, Public.

trust, affecting, a division of the class of multiform offences, 207 n., 208.

their place in a systematic classification of offences, considered,

207 n. t 308.
public, 228.

condition, and property, affecting, their relation considered, 227.
affecting, analysed, 234-242.

363 Index.

Offences, see also Trust.

uncontiguous relations, affecting, 283 w., 283.

Offender, the position of, as rendering punishment inexpedient, 176, 177.

Offensive trade, class of offences under which its exercise falls, 246 n.

'Or/ the particle, its ambiguous signification, and the importance of a

precise use of, 85 it.
Order, good, as a moral standard, an example of the application of the

principle of sympathy and antipathy, 1 7 n.
Overt act, see Act.

P.

Fain and pleasure, the end as well as the instruments of the legislator,
24-29.

the four sanctions or sources of, 24.
mode of estimating their value, 29.
certainty as an element in, 29.
duration as an element in, 29.
fecundity as an element in, 30.
purity as an element in, 30.

the fear of, among the motives the most constant in their influence,

167.
Fains, the simple, enumerated, 33, 34.

of sufferance and of apprehension, contrasted, 244.
Palate, pleasures and motives of the, 105.

as occasional tutelary motives, 145.
Farent, the natural and the legal relation of, distinguished, 274.

the natural relation not the subject of offence, 274.

the condition of, a complex one, involving the relation to the child of

guardian and master, and open to the corresponding offences, 275.

and child, the relation of, the reciprocity of right and duty it involves,

3 75-

offences affecting the condition of, examined and classified, 274-276,

276 n.

and husband, the condition of, points of resemblance and difference

between the relations, suggested, 280.

the, as a sort of deputy of the magistrate, 63.
Farentality, the relation of, examined, 256, 257.

wrongful non-investment of, how the offence may oocur, 276 n.
Partiality, to what class of motives it belongs, 113.

Party spirit, or zeal, to what class of motives it belongs, 113.

Patent right as an article of property, 294.

Paternity, the relation of, what, 256, 257, 276*1.

Patriotism, to what class of motives it belongs, 113.

Payment, nature of, as a legal transaction, analysed, 248 n.

Peculation, the offence of, 252, 271, 272, 374.

Pecuniary circumstances, elements constituting analysed, 52, 69 n.

circumstances, as influencing sensibility, 52.

interest, a neutral expression for the motive corresponding to the

pleasures of wealth, 105 n.

the passion of, the most apt to calculate consequences, 188.
the motive of, placed in the class of neutral motives, 119.
its various effects illustrated, 107, 145.

Index. 363

Pecuniary interest, the motiife of

love of gain and industry alike examples of, 107.
more generally operative than that of revenge,

167 w.
offences due to, appropriate punishment fur, 196.

punishment, eminently frugal, why, 194.

sometimes unequable, 191.

possesses the quality of variability, 191.

subserviency to lucrative satisfaction a quality of, 197, 200.

remissible, 200.

quasi, punishment, 194.
Penal code, see Code.

labour, see Labour.

law, limits of its concern with disposition, 142.

see also Law.

Perjury, the offences of, 221, 222.

Persecution, among the results of mistaken notions as to the dictates of

religion, 126, 140.

Person, offences against the, see Offences.
Personation, the offence of, 221, 222.
Persons, the services of, coordinated with things as objects of enjoyment,

209.

and see Property.
Phantastio principle, see Caprice.
Philanthropy, to what class of motives it belongs, 113.

Philip III of Spain, anecdote concerning his debt to certain English
merchants, in illustration of the province of international jurisprudence,
327/1.

Physical desire, general term for the motive corresponding to pleasures
of sense, 105.

no name for the motive of, in a good sense, 105.
placed in the class of neutral motives, 119.
among the most influential motives, 167.

sanction, one of the four sanctions, 25*
Piety, pleasures of, analysed, 35.

pains of, analysed, 40.
Piracy, a public offence, 286 n.
Play, love of, as a motive, 107.
Pleasure and pain, as sanctions, 24, 29.

the end as well as cause of action, 24.
Pleasures and p?iins, modes of estimating their value, 29, 30.

see aho Pains.

interesting perception a term for, 33.

kinds of, 33.

law, how concerned with them, 41.

how dependent upon the relation borne to external objects, 209 n.

extra-regarding and self-regarding, 41.

the simple, enumerated, 33.

of skill, no motive with a special appellation corresponding to the, 107.
Police, etymology of the term, 216 .

the preventive branch of government, 2151*.

functions of, their intimate but distinguishable connexion with those

of justice, 216 n.

offences concerning the, see Offences.

364 Index.

Political sanction, the, 24, 25.

theories, the dissemination of erroneous, the remedy for, 177.

and see Opinion.

tumult, see Tumult.

Polyandry, the practice of, unknown, 280, 281.

Polygamy, the offence of, 281.

Popular prejudice, to be regarded by the legislator, 199.

or moral sanction, the, one of the four sanctions, 25.

Popularity of an offender as rendering his punishment unprofitable,

*77-

as a quality of punishment, 198.

of punishment, favoured by its characteristicalnesp, 1 98.
Population, offences against, see Offences.
Possession, legal and physical, distinguished, 248, 251 n.

confused, why, 250 n.

pleasure of, its nature, 34.
Power, pleasures of, their nature, 35.

motives corresponding to, no.

love of, as a motive, in.

its relation to the love of reputation, 1 1 1.
placed among the neutral motives, 119.

and right, the conceptions examined and distinguished, 224?*., 258,

325.

coordinated with property, as an object of value, an.

the domestic, of husband and father, its utilitarian basis, 2599*., 279.

autocratic, 289 n.

executive, 289 .

judicial, 28971.

legislative, 28971.

military, 289 n.

sovereign, 289/1.

Powers of government, their necessary exercise as justifying the causing
of mischief, 177*.

foreign, their displeasure, as sometimes rendering punishment unprofit-

able, 177.

Preceptor, as a kind of deputy of the magistrate, 63.
Prejudice, see Popular.

Presents, receiving, from foreign powers, the offence of, 289 ., 29071.
Pride, see Reputation.
Primary mischief or evil of an act, what, 153.

see Mischief.

Principal, an appellation for a form of civil condition, 260.
Principle, a, what, 2 n.
Private ethics, see Ethics.

offences, see Offences.
Privation, pain of, 37, 38, 154 n.

Privy counsellor, the trust of, or symbouleutic trust, offence against,

289 n.
Probity, rules of, a fit subject for legislative enforcement, 321.

rules of, some of them the creation of legislation, 322.

motives which prompt to, 313.

Procedure, its relation to a body of law, neceisarily settled before the
limits between the civil and penal branches can be determined, 316.

mischiefs which it should be its province to obviate, 286, 287 nn.

Index. 365

Procedure, civil and criminal, the line between indistinct, x.
Profaneness, the offence of, low classed, 289 n.
Profession, as a civil condition, 292.

as a civil condition, how constituted, 292, 293.

religious, see Religion.
Profit, what, 31.

of an offence, 1 79 n.

its impelling motive, 17971.

Property, the conception examined, 52, 209, 227, 235 and n.
elements in, 209, 229, 230, 232, 23571*
benefit to the proprietor, 229.
a corporeal object or thing, 209, 230.
disposition and user unrestricted, 229.
obligation to non-interference on the part of others, 229,
232, 235 n.

* means, their relation to, 52.

object of, loose applications of the phrase, 230, 231, 232.

condition as an, 210, 227, 231.

copyright as an, 293.

incorporeal objects treated as, 231.

liberty as an, 231.

a monopoly as an, 232, 293.

a patent right as, 294.

persons (in Roman law) as the, 231 .

persons under legal obligation regarded as, 232.

persons, services of, as the, 231 n., 249

reputation as an, 231.

trust as an, 231.

the phrase properly restricted to corporeal objects, 230.

offences against

related to the rules of private ethics concerning probity, 322.

their rationale less obvious than those against person and reputa-
tion, 235/1.

and those against condition and trust, their connexion, 227, 229.

analysis of the forms they may assume, 247-252.

against the right to, and against the actual enjoyment of, distin-
guished, 247, 248.

the enjoyment of, analysed, 249, 250, 251.

the right or title to, analysed, 247, 248.

falsehood as an element in, 247.

force as an element in, 251.

the thirteen principal kinds or genera, named, 252.

and person together, 254, 255.

semi-public, 252, 25371.

self-regarding, 253 n.

technical term for certain, in English law, 255.

right of, distinguished from physical possession, 248.

rationale of its recognition by legislator, beyond the scope of the

work, 235, 236.
law conferring, its primary aspect, mischievous, 235 n.

succession to, among the advantages attending certain relations, 285.

the term, application of, see above, Object of.

value of an article of, elements constituting the, 32.

variation in value of an article of, its rationale, 32.

3 66

Index,

Prosecution of offences, motives which usually prompt the, 1 66 n.

Prosecutor, his motive wholly immaterial, 130.

Provisions, unwholesome, their sale, under what claw of offences it falls,

246.
Prudence, a duty of private ethics, 312.

in little need of aid from legislator, 319.

connexion of, with probity and beneficence, 312.
Public, the, what, 213.

the, as the beneficiary in a trust, 228.

offences, see Offences.

opinion, how related to the popular sanction, 25 n.

spirit, as prompting the prosecution of offences, canvassed, 166.

to what class of motives it belongs, 113.

Publications, immoral, the offence of issuing, how classed, 289 n.
Puffendorff, his works noticed, 329 .
Pulse, the, as furnishing a reliable indication of grief, 57,
Punishment and reward, the instruments by which government operates,
70.

demand for, as dependent on the state of the consciousness, 95.

as affected by the motive of the offender, 130.

is an example of a consequence, primarily mischievous, secondarily

beneficial, 157.

abatement of, compensation for the offence, as a ground for, 172.

strength of temptation as a ground for, 1 80.

acute, 200.

- adjustment of to the offence, see below, Proportion.

an artificial consequence of offences, 203.

- apportionment of to each portion of the mischief, to be aimed at, why,

181.

illustration of this, 18 1 n.

capital, considered, 196, 197, 199.

cases unmeet for, 170-177.

place of ethics in, 314.

- certainty of, its effect, 156, 183, 184.

characteristicalness as a property of, 192, 193, 194, 202.

retaliation an example of, 193.
exemplarity as a result of, 194.

chronical, 200.

compensatoriness, or subserviency to compensation, a property of, 195,

197.

pecuniary penalties as possessing the quality, 202.

see also Pecuniary.

commensurability as a property of, 191, 202.

its rationale, 191, 202.
mode of securing, 192.

the consciousness, its state as affecting the demand for, 95.

disablement as a subordinate property of, 171, 195, 196, 202.

effect of, depends upon the sensibility, 190.

real and apparent contrasted, 193.

equability as a property of, 190, 191.

exemplarity as a property of, 193, 194.

its rationale, 193.

may result from characteristicalness, 194.

increases the apparent magnitude of, 195*

Index. 367

Punishment) expense of, the properties which tend to diminish, 202.

expensive, too, or unprofitable, see Unprofitable.

frugality as a property of, 194, 202.

a quality of pecuniary punishment, 194.

frugality of, diminishes its apparent magnitude, 195.

groundless, under what circumstances, 171, 172, 205, 314.

place of ethics when, 314.

habit of offending, why to be considered in its adjustment to an offence,

183, 184.

inefficacious, under what circumstances, 173, 173, 315.

place of ethics when, 315.

justifiable, when, 170.

legal, defined, 169.

why in its adjustment the auxiliary effect of the moral and reli-
gious sanction necessarily disregarded, 186.

memorable, 198*1.

mischievous in the primary consequences, beneficial in the secondary,

157.

moral lesson as furnished by, 184.

motive of offender, how it affects the demand for, 1 30.

mixed forms of, essential, in order to secure perfection in, 201.

necessary quantity of, when it may be exceeded, 184.

needless or superfluous, under what circumstances, 177, 189, 190, 193.

objects of, 170 n. t 178.

pecuniary, tee Pecuniary.

subordinate objects of, 171, 195, 196, 197,

popularity as, a property of, 198.

favoured by characteristicalness, 198.

properties or choice of, the general subject, 189-203.

no single punishment possesses all the necessary, 201.
epitomized, 201, 202.

preference for the lesser of two eligible offences to be aimed at in the

adjustment of, 181.

proportion between, or adjustment of, to offences, 178-188.

offences and, rules for securing, 179-185.

investigation of, its results summarised, 186, 187.
why not useless, 187.

profit of the offence should be outweighed by, 179, 180.

the qualities which tend to augment the, 202.

quasi-pecuniary, 194.

remissibility as a property of, 199-202.

a quality of pecuniary penalties, 200.

remission of, for good behaviour, 200.

remoteness or uncertainty of, entails severity, 183.

reformatory tendency, as a subordinate end of punishment, 170, 195,

196.

force of, to what branch of the mischief of an act it is opposed, 157.

reward and, the instruments by which government operates, 70.
- adjustment of to sensibility, necessary, 67, 182.

superfluous, see above, Needless.

simplicity of the penal system, to be regarded in its adjustment, 185.

strength of temptation, its relation to, 179 n> 180.

SM also Temptation.

uncertainty of, entails need for severity, 183, 184.

368 Index.

Punishment, unprofitable, or too expensive, ;yhen, 175, 176, 315, 316, 317.
place of ethics, when, 315.
occasional circumstances which may render it such, 176, 177.

unprofitableness of, in general, to be considered in its choice, 185.

unknown, inefficacious, 172, 173.

variability as a property of, 189.

a quality of pecuniary penalties, 191.
Purity as an ingredient in pleasure and pain, 30.

Q.

Quakers, a religious society noticed, n.

Quarantine, offence against rules of, how classed, a i a n.

Quasi-pecuniary punishment, 191, 194.

B.

Baoe, or lineage, as influencing sensibility, 62.
Bank, or station in life, as influencing sensibility, 60.

as a civil condition, its constituent elements, 292.

accession of, among the advantages attending the uncontiguous rela-

tions, 285.

its advantages indicated, 285.

loss of, as an effect of the uncontiguous relations, 285.
Rape, as an offence, 253.

Rashness, what, 92, 95 n.

in exercise of judicial trust, 286 n.

secondary mischief of an act, how affected by, 165.
Bational agency, see Agency.

Bavaillac, his assassination of Henry IV of France, 135, 139, 166 n.

Beason, or ' right reason,' as a moral standard, 1 7 n.

Reasons, giving, equivalent to suggesting motives to the understanding,

101.

Recollection, see Memory.
Begret, pain of, what, 38.
Rebellion, offensive and defensive, as offences, 28971.

when it loses the character of robbery and acquires that of hostility,

217.

Recht, a German term for law in abstract, 324 n.
' Relation,' and ' relatively,' the terms examined, 209 ., 256.

pleasure and pain, modes in which they are said to depend upon, 209 n.
Relations, connubial and post-connubial, 256 and n.

contiguous and uncontiguous, 256.

conventional, purely, 258.

' domestic, of superiority and inferiority, 258.

family, or domestic conditions, at large, 255-286.

power their basis, 259 n.
rationale of, 259 n.

natural and arising by institution, 255-258.

purely natural, what, 236.

offences due to special, suitable punishment for, 197.

subject of, order of its treatment, 258.

uncontiguous, 285.

advantages and disadvantages attending, illustrated, 285.

Index. 369

Relations, uncontiguous -4

are beneficial or burthensome, 283.

conditions not constituted by, 383.

immediate and remote, 283.

no powers attached to them, as such, 283, 285.

offences to which liable, 283.

connexion of with those affecting the contiguous relations, 283,

384.

Belationship, by ascent, descent, collateral, and by affinity, 257.
Reformation, one of the ends of punishment, 170 n.

tendency to, as a quality of punishment, 195.

less important than example, 200.

Reformatory force of imprisonment, what branch of the evil of offences it
controls, 157 w.

see also Punishment.

quality of certain punishments, 196.
Relief, pleasures of, what, 37.

Religion, the dictates of, difficulty of determining their place in the order
of motives, 124, 125.

the ascetic principle often followed as, 125, 139.

mischievous effects of mistakes regarding, 126.

the principle of sympathy and antipathy pursued under the

name of, 125.

generally intermingled with principles adverse to utility, 1 26.
the theological principle followed as, 126.
their tendency to improve, 126.

false notions concerning, their mischievous effects, 126, 139.

worse than none, 139, 140.

legislative interference with, common grounds of, 320, 321, 321 n.

its mischievous effects, 32 1.

legislation concerning, limited to its effect as an influence upon human

action, 220 n.

the motive of, irregular in its operation, 168.

measure of its efficacy, 168. '

often more powerful than any other, 168.

evil act done through, more mischievous than one caused by that

of malevolence, 168.

an act not innocent because proceeding from, 165.
its claim to be classed as a standing tutelary motive, considered,

144.

as a good motive, 119.

as a semi-social as well as a self-regarding motive, 121.
indications regarding the disposition afforded by, 138, 139.
productive of every variety of result, 112.

offences against, the rationale of, 219, 220, 297.

examples of, 289 n.

to be distinguished from offences against God, 220 n.

their relation to other classes of offences, 219, 220.

pains of, see Piety.

things appropriated to the purposes of, offences concerning, how classed,

Religionists, rationale of the favour shown by them to the ascetic prin-

ciple, 9.
Religious and philosophical ascetics compared, 10.

BBNTHAM B b

370 Index.

Religious enthusiasts, a mischievous Danish^ect of, noticed, 140.

persecutions, see Persecutions.

profession, its economical effects, 64 n.

its influence upon education, 64.

as a circumstance influencing sensibility, 45, 63.

principles, erroneous, their dissemination, proper remedy for, see

Opinion.

sanction, one of the four sanctions, or sources of pain and pleasure, 24, 28.

deterrent of the practice of duelling, 109 n.
motives belonging to, ill.

their various names, ill.

their various results, illustrated, 112.
its ordinary weakness as a motive, 109.
see also Sanction.

sensibility, what, 50.

and bias, distinguished, 50.

the comparative effect upon them of good and bad government,

<>3.

terrors and superstitious terrors, distinguished, 40.
Remissibility as a property of punishment, 199-202.

as a property of punishment, its utility, 200, 201.

in an imperfect penal system, 201.
Remission of punishment for good behaviour, 200.
Remoteness or otherwise of a pleasure or pain, an element in its value,

39- .

of punishment, entails severity, 183, 184.
Reputation, or good-name, the conception analysed, 210.

love of, 119.

as a motive, how far conformable to utility, 122, 123.

both semi-social and self-regarding, 121.

various names for, 108-111.

its various effects, illustrated, 109, no.

duelling as a result of, 109.
a standing tutelary motive, 143 n.

a fictitious incorporeal object of property, 210, 231.

offences against, their nature analysed, 210.

their kinds, 246, 247.
modes of semi-public, 247 n.

see also Good-name.
Resentment, see Antipathy.

Responsibility or trust, offences by persons in positions of, rationale of

their penal treatment, suggested, 172 n.
Restraining motives, see Motives.
Restrainment, or restraint, as a form of personal injury, 244.

simple injurious, the offence of, 244, 244 n., 296.

confinement, banishment, robbery, extortion, forms of, 244 n.
Restraint, or compulsion, as a ground of exemption from punishment, 175.

or coercion, one of the evils of punishment, 175.
Retaliation, in the choice of punishment*, considered, 193.

as a punishment, characteristical, 193.

when it might be resorted to, 193.

susceptibility to admit of, as distinguishing the various classes of offences,

Index. 371

Revenge, a motive leas common and so leas dangerous than that of

pecuniary interest, 167 n.
Right, analysis of, unnecessary in a treatise on penal, essential in one on

civil law, 225 n.
folc, 324 n.

legal, the outcome of command and prohibition, 224 ., 225 n.

the creature of a legislator's will, 224 n.

conferred, implies duty or obligation imposed, 224 ., 225 .

not every duty corresponds to a, 225 ??.

none implied in self-regarding duties, 225 .

and power, the conceptions examined, 224 >*., 225 n., 258 ??.

have no superior genus, 225 n.

their analysis, in the treatise why incomplete, 224, 225 w.

of property, see Property.

rule of, as a moral standard, a form of the principle of sympathy and

antipathy, 17 ?/.

and wrong, the terms, 4.

have no meaning apart from utility, 7.

their supposed tests, for the mo^t part coincident with the principle

of sympathy and antipathy, 177?.
Bobbery, the offence of, what, 251, 252.

a complex offence, 252, 255.

rebellion, hostility, connexion of the ideas represented by the terms,

217.

Roman or civil law, vituperated, 334.
Roturier, the condition of, constituted by the privation of certain privileges,

294.

3.

Sanction, etymology of the term, 24 n.

a, what, 25 n.

the political or legal, what, 25.

its preventive force, how diminished by a past crime, 155, 156.

the moral or popular, what, 25.

its preventive force, how it operates, 156.
where none, offences frequent, 156.

the physical, what, 25.

the groundwork of the moral and the political, 27.

the religious, what, 25.

may concern the present as well as a future life, 25.
in ao far as it concerns a future life a matter of conjecture, 27.
its ordinary weakness illustrated, 109 n.

and the moral, their influence, why not a ground of exemption
from punishment, 175 n.

see also Religious, Moral, etc.

Sanctions, the four, as sources of pain and pleasure, 24.
illustrated, 26.

modes in which they furnish motives to action, 25.
their intimate connexion, 27, 28.
convenience of applying a common name to the influences so

termed, 27.

the influence of each to be taken account of by the legislator, 199.
Sanitary regulations, breach of, as an offence, how classed, 211,212 and ?*.,
246, 288 n.

B b 2

Index.

Satisfaction, or compensation, a collateral* end of punishment, 171 ;.,

195. 197.

lucrative, 171 n.
vindictive, 171 n.

see also Compensation.
Secondary mischief, see Mischief.

Security, external, of the State, offences against, see Offences, Public.
Seducing or corrupting motives, see Motives.
Seduction, as an offence, 253, 254, 281 n.

forcible, as an offence, 253, 254.
Self, duty to, a branch of ethics, 312.

government, the art of, or private ethics, 310.

interest, the only universally influential motive, 313.

preservation, motive of, 115, 116.

difficulty of distinguishing it from other motives, 116.
examples of the various acts to which it gives rise, 1 1 6, 1 1 7.
placed in the class of neutral motives, 119.
as an occasional tutelary motive, 146.

how it operates, 146.
recommendation, see Amity.

-regarding duties, no corresponding rights to, 225 71.

motives, see Motives,
offences, see Offences,
pleasures and pains, 41, 41 n.
Semi-public offences, see Offences.

-social motives, see Motives.
Sense, common, see Common.

moral, see Moral.

sexual, the, 34, 38.

motive corresponding to, 106.
Sense, pains and pleasures of, 34, 38 n.
Sensibility, bias or quality of, what, 43.

bias of, its effect upon the motive of sympathy, 313.

circumstances influencing, considered at large, 43-69.

adventitious, what, 68.

analytical view of the, 68.

classed, 44.

connate, what, 68.

effects of, 317.

exterior, 68.

investigation of, its utility, 64.

legislation, how far it can take account of, 65 .

methods for giving effect to, 67.

occasions demanding consideration of, 66.

personal, what, 68.

primary, what, 68.

their importance in the apportionment of punishment, 66, 67, 182,

190.

effect of punishment varied by, 190.
secondary, what, 68.

its degree, what, 43.

variations of, illustrated, 43, 44.

Sensuality, term applied in a bad sense to the motive of physical desire,
105.

Index. 373

Sentence, an ultra legal, a&trendering punishment inefficacious, 173.
Servant, the condition of, in what respects advantageous, 264, 265.

offences touching, 264, 265, 266.

their correspondence with those affecting the condition of master,
265.

stealing, an offence against the condition of master, 262, 263.

and master, see Master.

Servant-ship, or the condition of servant, see Servant.
Services, connubial, 282.

see alsQ Husband and Wife.

negative and positive, 232, 292.

of persons, as a species of property, 231 n.

as the subject of an offence against property, 249.

wrongful withholding of, nature of the offence, 249.

includes breach of contract, 249 n.

Servility, of what class of motives it is an example, 108.
Servitude, or the condition of servant, its various modes, 263.

the rationale of its modes belongs to the civil code, 264.
' Servitus servitutis iion datur,' the phrase ridiculed, 13 n
Sex, as a secondary circumstance influencing sensibility, 58, 305.

the female, see "Women.

Sexes, the characteristic differences of the two in point of sensibility,

compared, 58, 59.

Sexual desire, a neutral term for a motive, 1 06.
Shame, sense of, and fear of, 109.
Slave and free, Aristotle's division of mankind into the classes, noticed,

268 n.
Skill, the pleasures of, 34, 35.

the pleasures of, the motive corresponding to, no name for, 107.
Slavery, the condition of, analysed, 263.

a mode of the relation of master and servant, 263.
Smuggling, as an offence, how classed, 288 //.
Social motives, see Motives.

Sovereign, the, or the sovereignty, what, 218.

the, to whom the character belongs, in the Roman Coimnon wealth, in

the United Provinces, in the Swiss and in the Germanic body, ques-
tioned, 2i8n.

the, offences against, 214, 218, 289 n. y 297.

power, a trust, 289 n.

autocratic, what, 289 n.

its branches, 28971.

mode of its acquisition, 289 .

its exercise or distribution, 289 n.

officers executing, how controlled, 289 n.

Sovereigns, the transactions of, inter $e, the subject-matter of inter-
national law, 327.

rules concerning them, how far properly termed laws, 327.
Speculative motives, see Motives.
Spies, see Espionage.
Spontaneous, meaning of the term, 82 n.
Sport, love of, of what motive it is an example, 107.
* Springs of Action, the Table of the,' a work of the author, cited, 97 .
State, the, the conception of, necessarily implied in that of legislation,
322.

374 Index.

State, the, how can act an be detrimental to, 105.

the class of offences against, see Offences, Public.

as aifected by self-regarding offences, 303.
Station in life, see Bank*

Status, see Condition.

Steadiness, what, 49, 49 n.

Stealing, see Theft.

Strength, as a circumstance influencing sensibility, 44, 46.

and hardiness, distinguished, 47.

and health, distinguished, 46.

how measured, 46 n.

distinguished as general and particular, 46 n.

of temptation, see Temptation.
Subornation, as an offence, 240 n.
Sufferance, pains of, 41 n.

Suicide, its class among offences, 246 n.

as an offence against population, 288 n.

punishment for, in English law, unequable, 191 n.
Superintendent and subordinate, the relation of, as a civil condition,

examined, 260, 261.
Superior, 258-260.

domestic, 260.

power of the, its rationale, 259 n.

Superstition, defined as 'observances not dictated by the principle of
utility,' 59.

one of the terms applied to the motive belonging to the religious sanc-

tion, in.

Superstitious terrors, sea Religious.
Support, pecuniary, chance of obtaining and liability to render, among

correlatives, 285.

the respective advantages and disadvantages belonging to certain rela-

tions, 285.

Sympathetic bias, and sensibility, what, 50.

Sympathy or benevolence, the motive of, its relation to sensibility, 313.
connexions in the way of, as influencing sensibility, 53.

pains of, 40.

among the derivative evils of punishment, 175.

pleasures of, the motive belonging to, various terms to denote, 113.

examples of the various acts resulting from, 113, 114.

and antipathy, the principle of, what, 15, 16.

its opposition to that of utility, 15.

its dictates sometimes coincident with those of utility, 18.

a mere negation of all principle, 16.

its application, illustrated, 16.

the ground of approbation and disapprobation of conduct, 123.

theories of the moral standard commonly referrible to, 17.

forms under which the principle has appeared, 17 w., 18 n. t 19 n.

often the false ground upon which punishment is apportioned, 151.

commonly errs on the side of severity, 20.

occasionally too lenient if the evil is remote, 21.

often followed under the name of the dictates of religion, 125.

Index. 375

T.

Table of the Springs of Action, 1 &c., a work of the author, cited, 97 n.
Tax, non-payment of a, an illustration of the shapes in which the mischief
of an act may show itself, 160.

mischievous, why, 160, 16 1.

its fecundity of mischief, 162.

more dangerous than alarming, 162.

offence of, how classed, 288 n.
Tears, but slightly indicative of real grief, 57 n.

Oliver Cromwell profuse in, 57.

women more readily moved to than men, 58.
Temperament, see Body, Mind.
Temptation, the strength of, what meant by, 147.

disposition of an offender, indications afforded by, 148, 180.
the maxim that the punishment should rise with, stated, 151.
rationale of this proposition examined, 1 79.
dispute of its truth ridiculed, 179 n.
ground of the dislike to it, 151.

Tendency of an act or event, how estimated, 30, 31, 32, 70.
circumstances upon which it depends, 70, 71, 152.
indications of the disposition of the actor afforded by, examined and

illustrated, 133, 134-141.
mischievous, what, 152.

Theft or stealing, as an offence against property, the conception analysed,
250,251,252.

absence of consent or of co-operation on the part of the owner,
owner, as an element in, 250, 251.

robbery, embezzlement, defraudment, extortion, distinguished, 250,

251, 252.

robbery, and the like offences, penal labour why an appropriate penalty

for, 196.
Theological principle, the, what, 21.

not really distinguishable from that of asceticism, sympathy, &c.,

or utility, 21, 22, 22 n., 126.
followed as the dictates of religion, 126.

Threat, influence of, as a ground of exemption from punishment, 175.
Trade, right to exercise a, as a condition, 232.

offensive, see Offensive.

Transitive and intransitive, see Acts, Offences.
Treachery, why not a fit subject for legal punishment, 318.
Treason, the offence of, 286 n.

positive and negative, 286 n.
Treatise, the, its original design, v, viii.

in what respects incomplete, vii.

Trust, a, the conception of, examined, 223 et seq.

terms used to express the relation involved in, 225, 226, 226 n.
may be either a benefit or a burthen, 235.
as beneficial, offences against, 235, 237.
as burthensome, offences against, 237, 238.

the existence of, nature of the resulting mischief in an offence
against, 235.

analysis of an offence against, 235, 236.

37 6 Index.

Trust, a, a promise not necessarily implied i^ ; 226 n.

abuse of, 239 and n., 242.

breach of, 239, 247, 252.

and abuse of, distinguished, 239 91.

appropriate remedy in cases of, 197.

bribery a species of, 240.

an element in the offence of embezzlement, 250.

positive and negative, what, 239.

cestui que, or beneficiary, 226, 226 n.

condition and, points of connexion between them considered, 227, 228.

and property, compared, 234 n.

disturbance of, as an offence, 239, 240.

exercise of, or the office of trustee, offences connected with the,

234-238.
- fiscal, 288 n.

judicial, offences against, 286 n.

nature of the mischief consequent upon, 286 n.

novel terminology (derived from Greek) for some forms of public, 216,

287 w., 288 n., 289 n.

offences against, a division of multiform offences, 208, 2 2 3, etc.

classification of, considered, 207 n.

divisions of, and their connexion with each other, 234 et seq.

regarded as prejudicial to the beneficiary, 238.

as affecting the exercise of the function of trustee, 234, etc.,

238, etc.

their subdivisions, epitomised, 241 .
subordinate divisions of, 228.

private, semi-public, and public, 241, 260.

guardianship a, 270.

public, and public condition, how far equivalent conceptions, 228.

various forms of, and offences against, 287-289.

sovereign power, a, 289 n.
Trustee, 225, 226, 226?*.

offences affecting the exercise of the office of, 238 et seq.

prodigality of a, the offence of, 241.

may be treated as a self-regarding offence, 241.
Truth, as a supposed moral standard, 17 w.
Tumult, political, as an offence, 289 n.
Tutelary or preserving motives, see Motives, tutelary.
Tyrrel, Sir W., his killing of William II used in illustration of the various
possible mental attitudes at the time of an act, 85-87, 90-92.

IT.

Unadvisednesa of an act, 89.

when termed ' heedlessness,' 89.

Roman expressions indicating, 94, 95 n.

its effect upon secondary mischief, 164.
Uncertainty of punishment, entails severity, 183, 184.

of punishment, an effect of its unpopularity, 199.

see also Punishment.

Unconsciousness, as to circumstances attending an act, what, 7 1 *

Index.

377

Unconsciousness, as to circumstances attending an act

as a ground of exemption from punishment, 1 74.
Understanding, the, as a supposed moral standard, 17/1.

and the will, as faculties of the mind, 97.
Unequable punishment, what, 190.
Unfrugal punishment, what, 194.

the death penalty an example of an, 197.
Unintentional, meaning of the term, 82, 95 n.

acts, why not feared, 164.
Unintentional! ty, 89, 174.

Universal jurisprudence, tee Jurisprudence.
Unnatural, the expression examined, i8w.
Unpopularity of a punishment, its ill effects, 198.

a source of weakness in the law, 198.

contributes to the uncertainty of its application, 198.
Usury, how far an offence, ix, 252 n.

' The Defence of,' a treatise of the author, referred to, ix.
Utility, what meant by, 2.

conformity to, what meant by, 3.

dictates or laws of, what, 3.

as the sole actual ground of approbation, and as the sole test of deserving

approbation, distinguished, 19 w,

a phrase preferable to those of * good order,' ( natural justice,' and the

like, 17 H.

the principle of, consistent pursuit of, rare, 4,

its supposed dangerousness, 4 n.

direct proof of its rectitude, impossible, 4.

disproof of, impossible, 3, 4.

the dictates of, those of enlightened benevolence, 121.

often coincide with those of sympathy and antipathy, 18.
explained, 2.

followers of, stigmatized as Epicurean, 10.
phrases alternative to, in., 5 n.
prejudices against, method of surmounting, 5, 6.
a pi inciple how opposed to, 8.
principles alternative to, 8.
punishment, from its point of view, 170.
terms * ought, 1 ' right,' ' wrong ' intelligible by reference to, 3, 4.

V.

Value of pleasure and pain, mode of estimating it, 29.

Vanity, see Beputation.

Variability, as a quality of punishment, 189.

see also Punishment.

Vengeanoe, as a motive, why less alarming than that of pecuniary

interest, 16711.

Vest and divest, the expressions as applied to trusts, 236 n.
Vice, as a subject for legislative interference, 318, 320.
Vilification or revilement, as an offence, 246, 247.

political, 289 n.

' Volenti non fit injuria,' 171, 172.
Voluntary, various senses of the term, 82 n.

378 Index.

w.

Ward, condition of, when it becomes one of pure slavery, 269.
and guardian, limits of their reciprocal rights and duties, 269.

see also Guardian.

-ship, offences affecting the condition of, 272-274.

their coincidence with those against guardianship,
272-273.

perpetual, of women, see Women.

Wants, a man's, circumstances upon which they depend, 52.
Wars, Holy, the result of false notions of religion, 126, 140.
Weakness, in reference to sensibility, what meant by, 46 n.
Wealth, the pleasures of, what meant by, 34.
motives corresponding to, 107.

love of, among the most influential motives, 167.

national, the, what, 217.

an offence against, what, 217.

and the public, the distinction between, noted, 21 7 n.

the public, includes persons and things, 217.

an offence against, what, 217.

offences against the national and public, 288 n.

Wedderburn, Sir A. (afterwards Lord Kosslyn), his remarks upon the

principle of utility, criticised, 5.
Wer-geld, an example of an imperfect adjustment of punishment to

offence, 199 n.

Whipping, as a punishment, 200.
Wife, condition of, when it becomes one of pure slavery, 279.

when it becomes one of pure slavery, historical examples of, 279.
offences to \vhich it is liable, 282.
Will, the, act of the, a positive act, 98 n.

and intention, the terms used interchangeably, 82, 89.

and the understanding, contrasted, 88, 92.

as a mental faculty, susceptible of coercion, 243.

its state, in reference to action, an element in intention ality as to

consequences, 71.
Wives, plurality of, in Mahommedan countries, an illustration of the

modification of which the marriage contract is susceptible, 280.
Women, their difference from men in point of sensibility, 58, 59.

the perpetual tutelage of, 268 n.

their supposed mental imbecility, 268 n.
Wrong, right and, their meaning, 4.

Z.

Zeal, ' corporation/ or spirit, as a motive, rendered in French in the
expression 'esprit de corps/ 113.

national, party, public, as motives, 113.

enthusiastic, fanatic, religious, superstitious, j 1 1 .

OXFORD
PRINTED AT THE CLARENDON PRESS

BY HORACE HART, M.A.
PRINTER TO THE UNIVERSITY

CLARENDON PRESS BOOKS

THEOLOGY
The Holy Scriptures, Apocrypha, etc

The Bible in English

Reprint of the Authorized Version of 1 Gil. 4to. isss. 33s.net.
The Authorized Version.

Complete lists of Oxford Bibles, Oxford Bibles for Teachers, Oxford Prayer
Books, Church Sets, etc, in all styles and bindings can be obtained from
any bookseller, or from Mr. Henry Frowde, Oxford University *
Amen Corner, London, E.G.

The Revised Version.

[The Revised Version is the joint property of the Universities of Oxford

and Cambridge.]
Edition for the Church Desk.

Folio. In buckram, with the Apocrypha, 9 2s. net. Bound in
Grained Cowhide, 2 10s. ; with the Apocrypha, 3 ; in Turkey
Morocco, 4 4s.; with the Apocrypha, 4 16s.

Library editions, in large type (pica). Bound in cloth and greatly reduced
in price.

Royal 8vo, with large margins : with the Apocrypha, 6 vols., from 1 9s. ;

the Apocrypha only, 10s. 6d. ; the other five volumes, 18s. 6d.
Demy 8vo, with the Apocrypha, 6 vols., 1 Is. ; the Apocrypha only,

7s. 6*d. ; the other five volumes, 14s.
Single volume editions :

Royal 8vo, on Oxford India Paper, and in large type (pica), in Persian,

2 12s. 6d.; with the Apocrypha, in Turkey Morocco, 3 19s.
Royal 8vo, small pica type. In cloth, 10s. 6d. ; in leather bindings, from

19s. 6d.

Kvo, small pica type. In cloth, 7s. 6d. ; in leather bindings, from 10s. 6d.
Svo, minion type. In cloth, 4s. ; with the Apocrypha, 6s. ; the Apocrypha

only, 3s.
16mo, ruby type. In cloth, 2s. 6d. ; with the Apocrypha, 4s.; the

Apocrypha only, 2s. ; with the Oxford Helps, in leather, from 7s.
16mo, nonpareil type. In leather, from 3s.

Itimo, pearl type. In cloth boards, from 8d. ; with Oxford Helps,
from 2s. 6d.

The Revised Version with marginal references.

8vo, in bourgeois type, from 6s. ; on Oxford India paper, bound in

leather, from 15s.
8 vo, in minion type, from 5s. ; with the Apocrypha, from 7s. 6d. ; with Oxford

Helps, from 11s. ; on Oxford India paper, bound in leather, from 14s.
16mo, in nonpareil type, in leather, from 6s. ; on Oxford India paper,

bound in leather, from 10s. 6d.

Parallel Bible, containing the Authorized and Revised Versions in
arallel columns. Small quarto, in minion type. On ordinary paper, from
10s. 6d. ; on Oxford India paper, bound in leather, from 16s.

The Two-Version Bible, being the Authorized Version with the
differences of the Revised Version printed in the margins, so that both texts
can be read from the same page. With references and maps. Bourgeois
type. Cloth, 7s. 6d. ; leather, from 10s. 6d. ; on Oxford India paper cloth,
10s. 6d. ; leather, from 15s. ; interleaved with writing-paper, ana bound in
leather, from 1 Is. With the Oxford Helps, leather, from 18s. 6d. Printed
on writing-paper with wide margins for notes, from 10s. 6d. net.

1

Elementary Helps to the Study of the Bible

Oxford Bible for Teachers, containing the texts of the Old and

New Testaments, with or without marginal references, and in either the
Authorized or Revised Versions, together with the Oxford Helps to the Bible
(see below), and 124* full-page plates.

In many styles and bindings, from 3s. to 5. A complete list can be
obtained from Mr. Henry Frowde, Amen Corner, London, E.G.

The Oxford Helps to the Study of the Bible, containing

Introductions to the several Books, the History and Antiquities of the Jews,
the Natural History of Palestine, with copious tables, concordance and
indices, and a series of maps. With 124 full-page plates.

8vo, in long primer type cloth, 5s. ; leather, from (>s. 6d.

8vo, in nonpareil type cloth, 2s. (3d. ; leather, 3s. 6d.

16mo, in pearl type stiff covers, Is. net; cloth, Is. 6d. ; leather, from 2s.

Bible Illustrations, being 12t full-page plates, forming an appendix to
the above. Crown 8vo, cloth, 2s. 6d.

Old Testament History narrated for the most part in the words of

the Bible. By GEOROE CARTER. With maps. Crown 8vo. 2s.
An Annotated Psalter. Arranged by J. M. THOMPSON. Fcap 8m 2s.

Dr. Stokoe's Manuals. Crown 8vo
Old Testament History for Schools. By T. H. STOKOE. Part I.

(Third edition.) From the Creation to the Settlement in Palestine. Part II.
From the Settlement to the Disruption. Part III. From the Disruption to
the Return from Captivity. Extra fcap 8vo. 2s. 6d. each, with maps.
Manual of the Four Gospels. With Maps, 3s. 6d. Or, separately,
Part I, The Gospel Narrative, 2s. ; Part II, The Gospel Teaching, 2s.

Manual of the Acts. ss.

The Life and Letters of St. Paul. 3s. 6d. Or, separately,

Part I, The Life of St. Paul, 2s. Part II, The Letters of St. Paul, 2s.

First Days and Early Letters of the Church. 3s. Or, Part I,

First Days of the Church, Is. 6d. Part II, Early Letters of the Church, 2s.

Graduated Lessons on the Old Testament. By u. z. RULE,

edited by Li.. J. M. BEBB. Selected Readings from the O. T. with para-
phrases and connecting paragraphs ; with notes for teachers and pupils. For
use in lower forms, and in elementary and Sunday Schools. The text is that
of the II. V., but the book maybe used with the A.V. In three volumes.
Extra fcap 8vo. Is. 6d. each in paper covers, or Is. 9d. each in cloth. Vol. I.
Creation to Death of Moses. Vol. II. Conquest of Canaan, Psalms, etc.
Vol. III. Israel and Judah, the Captivity, the Prophets.

The Gospel according to St. Mark. Ed. by A. s. WALPOLE. is.6d.

Notes On the Gospel Of St. Luke, for Junior Classes. By Miss
E. J. MOORE SMITH. Extra fcap 8vo, stiff covers. Is. 6d.

A Greek Testament Primer, being an easy grammar and reading-
book for the use of students beginning Greek. By E. MILLER. Second
edition. Extra fcap 8vo, paper, 2s.; cloth, 3s. 6d.

History of the Bible
List of Editions o the Bible in English, by H. Cairo*.

Second edition. 8vo. 8s. 6d.

RhemCS and Doway ; showing what has been done by Roman Catholics
for the diffusion of the Bible in English. By H. COTTON. 8vo. 9s.

The Part of Rheims in the Making of the English

Bible, by J. G. CARLE-TON, containing historical and critical introduction,
tables and analyses thereof. 8vo. 9s. 6d. net.

Wycliffe's Bible, portion edited by W. W. SKEAT. See p. 6.

Studia Blblica et Ecclesiastica. Essays chiefly in Biblical and

Patristic criticism, and kindred subjects. 8vo.

Vol. I, 10s. 6d. Vol. II, 12s. 6d. Vol. Ill, 16s. Vol. IV, 12s. 6d.

Vol. V, complete, 16s., or, in separate parts, Part I, Life of St. Nino, by
M. and J. O. WAUDROP. 3s. 6d. Part II, Texts from Mount Athos, by
K. LAKE. 3s. 6d. Part III, Place of the Peshitto Version in the Ap-
paratus Criticus of the Greek New Testament. 2s. 6d. Part IV, Baptism
and Christian Archaeology, by C. F. ROGERS. 4s. 6d.

The Gospel of Barnabas. Edited and translated from the Italian
MS. in the Imperial Library, Vienna, by LONSDALE and LAURA RAGG. 8vo,
with a facsimile. 16s. net.

The Journal Of Theological Studies. Edited by J. F. BETHUNE-
BAKER and F. E. BRIGIITMAN. Published Quarterly, price 3s. 6d. net.
Annual subscription 12s. net, post free. Many of the back numbers are still
obtainable.

The Old Testament and Apocrypha

The Psalter, by RICHARD ROLLE of HAMPOLE. Edited by H. K.
BRAMLEY. With an introduction and glossary. 8vo. 1 Is.

The Parallel Psalter : being the Prayer-Book version of the Psalms
and a new version arranged on opposite pages, with an introduction and
glossaries by S. R. DRIVEK. Second edition. Extra fcap 8vo. 3s. 6d. net.

The Book of Job in the Revised Version. Edited, with

introductions and brief annotations, by S. R. DRIVER. Crown 8vo.
2s. 6d. net.

The Hebrew Prophets in the Revised Version. Arranged

and annotated by F. H. WOODS and F. E. POWELL. In four vols., crown 8vo.
Vol. I (Amos, Hosea, Isaiah i-xxxix, Micah), 2s. 6d. net.

Lectures On EcclesiasteS. By G. G. BRADLEY. Second edition.
Crown 8vo. 5s. 6d.

Israel's Hope Of Immortality. By C. F. BURNEY. 8vo. 2s. 6d. net.

EcclesiasticUS, translated from the Hebrew by A. E. COWLEY and
A. NEU BAUER. Crown 8vo. 2s. 6d.

3

The Place of Ecclesiasticus in Semitic Literature. An

essay by D. S. MARGOLIOUTH. Small 4to. 2s. 6d.

The Five Books of Maccabees, with notes and illustrations by
H. COTTON. 8vo. 10s. <5d. *

The Book of Enoch, translated from Dillmann's Ethiopia text (emended
and revised), and edited by R. H. CHARLES. 8vo. [Out of print.]

The Book of the Secrets Of Enoch, translated from the Slavonic
by W. R. MORFILI,, and edited, with introduction, notes, etc, by R. H.
CHARLES. 8vo. 7s. 6d.

History and Song of Deborah (Judges iv and v). By G. A.

COOKE. 8vo. Paper covers. Is. 6d. (Published by Mr. Frowde.)

DeuterOgraphs. Duplicate passages in the Old Testament. Arranged
by R. B. GIRDLESTONE. 8vo. 7s. 6d.

Astronomy in the Old Testament. By G. SCHIAPARELU.

Authorized translation. Crown 8vo. 3s. (id. net.

Libri Psalmorum Versio antiqua Latina, cum Paraphrasi Angio-

Saxonica. Edidit B. THORPE. 8vo. 10s. 6d.

Libri Psalmorum Versio antiqua Gallica e Cod. MS in Bibi.

Bodleiana adservato, una cum Versione Metrica aliisque Monumentis perve-
tustis. Nunc primum descripsit et edidit F. MICHEL. 8vo. 10s. 6d. net.

Chandler's Life of David. 8vo. 7s. 6d. net.
Paussett's Sacred Chronology. 8vo. 10s. 6d. net.

Hebrew and Chaldee
Notes on the Hebrew Text of the Book of Genesis.

By G. J. SPUIIRELL. Second edition. Crown 8vo. 12s. 6d.
Notes On Samuel. By S. R. DRIVER. [Out of print.]

Notes on the Hebrew Text of the Books of Kings. By

C. F. BURNEY. 8vo. Us. net.

A Hebrew and English Lexicon of the Old Testament,

with an Appendix containing the Biblical Aramaic, based on the Thesaurus
and Lexicon of GESENIUS, by F. BROWN, S. R. DRIVER, and C. A. BRIGGS.
Small 4to. 34s. net. The several Parts can be supplied to complete sets.

Gesenius's Hebrew Grammar, as edited and enlarged by E.
KAUTZSCH. New edition in preparation.

A Treatise on the Use of the Tenses in Hebrew. By

S. R. DRIVER. Third edition. Crown 8vo. 7s. 6d. net.

A Commentary on the Book of Proverbs, attributed to

ABRAHAM IBN EZRA. Edited from a MS in the Bodleian Library by S. R.
DRIVOU Crown 8vo. Paper covers, 3s. 6d.

4

The Book Of Tobit. A Chaldee Text, from a unique MS in the
Bodleian Library ; with other Rabbinical texts, English translations, and the
Itala. Edited by A. NEJJBAUER. Crown 8vo. 6s.

EcclesiasticUS (xxxix. 15 xlix. 11). The Hebrew, with early
versions and English translation, etc, edited by A. E. COWLEY and A. NEUBAUEH.
With 2 facsimiles. 4to. 10s. 6d. net. Translation, see p. 67.

Facsimiles of the Fragments hitherto recovered of the

Book of Kcclcsiasticus in Hebrew. 60 leaves in Collotype. 1 Is. net.
(Published jointly by the Oxford and Cambridge University Presses.)

The Psalms in Hebrew without points, stiff covers. &s.
Accentuation of Psalms, Proverbs, and Job. By w. WICKES.

8vo. 5s.

Hebrew Prose Accentuation. By the same. 8vo. ios. 6d.
Lightfoot's Horae Hebraicae et Talmudicae. A new

Edition by R. GANUEI.L. 4 vols. 8vo. 1 Is.

Greek

VetUS Testamentum ex Versione Septuaginta Interpretura secundum
exemplar Vaticanum Romae editum. Accedit potior varietas Codicis Alex-
andrini. Tomi III. 18mo. 6s. each volume.

A Concordance to the Septuagint and other Greek Versions of
the O. T. (including the Apocryphal Books) ; by the late EDWIN HATCH and
H. A. REDPATH. With Supplement. By H. A. REDPATH. Fasc. I, containing
a Concordance to the proper names occurring in the Septuagint ; Fasc. II,
containing a Concordance to Ecclesiasticus, other Addenda, and the Hebrew
Index to the whole work. Imperial 4to. Cloth in 3 vols. & 8s. net (or
Concordance, 2 vols., 6 17s. 6d. net. Supplement, 2 net). Parts 1 1- VI,
21s. net each ; Supplements I and II, 16s. net each.

Origenis Hexaplorum quae supersunt sive Veterum inter-

pretum Graecorum in totum Vetus Testamentum Fragmenta. Edidit F. FIELD.
2 vols. 4to. 5 5s. net.

Essays in Biblical Greek. By EDWIN HATCH. 8vo. 10s. 6d. net.

The Book of Wisdom : the Greek Text, the Latin Vulgate, and the
Authorized English Version ; with an introduction, critical apparatus, and
a commentary. By W. J. DEANE. 4to. 12s. 6d. net.

The Greek Versions of the Testaments of the Twelve

Patriarchs. Edited from nine MSS, with variants from other versions.
By R. H. CHARLES. 8vo. 18s. net.

Coptic
Tattam's Major and Minor Prophets. See p. 85.

The New Testament

The Parallel New Testament, Greek and English ; being

the Authorized Version, 1611 ; the Revised Version, 1881 ; and the Greek
Text followed in the Revised Version. Svo. 12s. 6d.

The New Testament in Greek and English. Edited by

E. CAIIDWELL. 2 vols. 1837. Crown Svo. 6s.

Greek

The Greek Testament, with the Readings adopted by the Revisers of
the Authorized Version. (1) Pica type. Demy8vo. 10s. 6d. (2) Long Primer
type. With marginal references. Fcap Svo. 4s. 6d. (3) The same, on
writing-paper, with wide margin, 15s. (4) The same, on India paper. 6s.

NoVUm Testamentum Graece. Accedunt parallela S. Scripturae

loca,etc. Ed. C.LLOYD. ISino. 3s. On writing-paper, with wide margin, 7s. 6d.

Critical Appendices to the above, by W. SANDAY. Extra fcap Svo. 3s. 6d.

NoVUm Testamentum Graece (ed. LLOYD), with Sanday's Appen-
dices. Cloth, 6s. ; paste grain, 7s. 6d. ; morocco, 10s. 6d.

Novum Testamentum Graece juxta Exemplar Millianum.

Fcap Svo. 2s. 6d. On writing-paper, with wide margin, 7s. 6'd.

Evangelia Sacra Graece. Fcap Svo, limp. is. ed.

NoVUm Testamentum Graece, Antiquissimorum Codicum Textus
in ordine parallelo dispositi. Edidit E. H. HANSELL. Tomi III. Svo. 1 4s.

Athos Fragments of Codex H of the Pauline Epistles.

Photographed and deciphered by KIRSOFP LAKE. Full-size collotype
facsimiles, large 4to, in an envelope. 2 Is. net.

Athos Fragments of the Shepherd of Hermas. Photo-
graphed and transcribed by KIRSOPP LAKE. Full-size collotype facsimiles,
large 4to, in an envelope. 17s. 6d. net.

Outlines of the Textual Criticism of the New Testament.

By C. E. HAMMOND. Sixth edition. Crown Svo. 4s. 6d.

Greswell's Harmonia Evangelica. Fifthedition. 8vo. 9s. 6d. Pro-
legomena. 8vo.5s.net. Dissertations on the Harmony. 25s.net.
.Jones's Canon of the New Testament. 8vo. 3 vols. iss. net.

DiateSSaron. Edited by J. WHITE. 3s. 6d.

Horae Synopticae. By Sir J. C. HAWKINS, Bart. Svo. 10s. 6d. net

Dr. Sanday's Books

Sacred Sites of the Gospels, with sixty-three full-page illustrations,
maps, and plans. 8vo. 13s. 6d. net.

Criticism of the Fourth Gospel. 8vo. 7s. ed. net.

The Life of Christ in Recent Research. 8vo, with two

illustrations. 7s. 6d. net.

Presidential AddreSS to the Christian Section of the Congress of the
History of Religions, 1908. Svo. Is. net.

6

The Logia
Two Lectures on the * Sayings of Jesus', delivered at Oxford

in 1897, by W. LOCK and W. SANDAY. 8vo. Is. 6d. net.

The Oxyrhynchus fLogia and the Apocryphal Gospels.

By C. TAYLOR. 8vo, paper covers, 2s. 6d. net.

The Oxyrhynchus Sayings of Jesus, foundt n 1903? with the

Sayings called * Logia ', found in 1897. By C. TAYLOH. Hvo. 2s. net
Published by Mr. Frowde for the Egypt Exploration Fund.

By B. P. GRENFELL and A. S. HUNT.

AOriA IHZOY, from an early Greek papyrus, with translation and com-
mentary. 8vo, stiff boards, with two collotypes, 2s. net; with two tone
blocks, 6'd. net.

New Sayings of Jesus and Fragment of a Lost Gospel. With one Plate. Is. net.
Fragment of an Uncanonical Gospel from Oxyrhynchus. With one Plate. Is. net.

Coptic and Syriac
The Coptic Version of the New Testament, in the Northern

Dialect, otherwise called Memphitic and Bohairic. With introduction,
critical apparatus, and English translation. 8vo. Vols. I and II. The Gospels.
2 2s. net ; Vols. Ill and IV. The Epistles. 2 2s. net.

Tetraeuangelium Sanctum iuxta simplicem Syrorum versionem ad
fidem codicum, Massorae, editionum denuo recognitum. Lectionum supel-
lectilem quani conquisiverat P. E. PUSEY auxit, digessit, edidit G. H.
GWILLIAM. Accedunt capitulorum notatio, coneordiarum tabulae, trans la tio
Latina, annotationes. Crown ito. 2 2s. net.

Collatio Cod. Lewisiani Evangeliorum Syriacorum cum

Cod. Curetoniano, auctore A. BONUS. Demy 4to. 8s. 6d. net.

Latin
Old-Latin Biblical Texts : small 4to, stiff covers.

No. I. St. Matthew, from the St. Germain MS (g,). Edited by J.
WORDSWORTH. 6s. net. No. II. Portions of St. Mark and St. Matthew,
from the Bobbio MS (k), etc. Edited by J. WORDSWORTH, W. SANDAY, and
H. J. WHITE. 1 Is. net. - No. III. The Four Gospels, from the Munich
MS (q), now numbered Lat. 6224-. Edited by H. J. WHITE. 12s. 6d. net.
No. IV. Portions of the Acts, of the Epistle of St. James, and of the
First Epistle of St. Peter, from the Bobbio Palimpsest (s), now numbered
Cod. 16 in the Imperial Library at Vienna. Edited by H. J. WHITE.
5s. net. No. V. The Gospels from the Codex Corbeiensis (ft\ or ff 2 ) with
Fragments of the Catholic Epistles, Acts, and Apocalypse from the
Fleury Palimpsest (h). Edited by E. S. BUCHANAN. 12s. 6d. net.

Nomim Testamentum Latine, secundum Editionem Sancti Hiero-
iiymi. Recensuit I. WOHDSWORTH, Episcopus Sarisburiensis ; in operis
societatem adsumto H. I. WHITE. 4to. Part I (^Gospels), 2 12s. 6d. (Some
of the fasciculi of Part I can still be obtained separately). Part II, fasc. i
(Romans), in the press. Part III, fasc. i (Acts), 12s. 6d.

Notes on the Karly History of the Vulgate Gospels. By

Dom JOHN CHAPMAN, O.S.B. 8vo. I6s. net.

Gothic
Sacrorum Evangeliorum Versio Gothica cum interpretatione

Latina et annotationibus ERICI BENZELII edidit EDWAHDUS LYE (1750). Large
4to. 1 10s. net.

7

The Fathers of the Church and
Ecclesiastical Htetoiy

Editions with Latin Commentaries

Catenae Graeeorum Patrum in Novum Testamentum edidit J. A.
CRAMER. Tomi VIII. 8vo. 2 8s. net.

dementis Alexandrini Opera, ex rec. GUIL. DINDORFII. Tomi IV. 8vo.
3 net.

Cyrilll Archiepiscopi Alexandrini in XII Prophetas edidit P. E. PI-BEY.
Tomi II. 8vo. 9 2s.

In D. Joannis Evangelium. Acccdunt Fragmenta Varia. Edidit post

Aubertum P. E. PUSEY. Tomi III. 8vo. 2 5s.
Commentarii in Luoae Evangelium quae supersunt Syriace edidit
R. PAYNE SMITH. 4to. 1 2s. Translation, 2 vols. 8vo. 14s.

Ephraemi Syri, Rabulae, Balaei aliorumque Opera Selecta. See p. 85.

Eusebll Opera recensuitT. GAISFORD.

Evangclicae Praeparationis Libri XV. Tomi IV. 8vo. 42s. net.
Evarigelicae Demonstrationis Libri X. Tomi II. 8vo. 15s.
Contra Hieroclem et Marcel lum Libri. 8vo. 7s.
Annotationes Variorum. Tomi II. 8vo. 17s.

Canon MuratorianUS. Edited, with notes and facsimile, by S. P.
TREGELLES. 4to. 10s. 6d.

Evagrii Historia Ecclesiastica, ex rec. H. VALESII. 8vo. 4s.

Fl. Joseph! de bello Judaico Libri Septem recensuit E. CARDWELL.
Tomi II. 8vo. 17s.

OrigeniS Philosophumena; sive omnium Haeresium Refutatio e Cod ice
Parisino nunc primum edidit EMMANUEL MILLER. 8vo. 10s.

Patrum ApOStollCOrum dementis Romani, Ignatii, Polycarpi, quae
supersunt edidit G. JACOBSON. Tomi II. Fourth edition. 8vo. 1 Is.

Reliquiae Sacrae secundi tertnque saeculi recensuit M. J. ROUTH-
Tomi V. Second edition, 1816. 8vo. 1 5s. net.

Scriptorum Ecclesiasticorum Opuscula recensuit M. J. ROUTH.

Tomi II. Third edition, 1858. 8vo. 10s.

SocratlS Scholastici Historia Ecclesiastica Gr. et Lat. edidit R. HUSSEY.
Tomi III. 1853. 8vo. 15s. net.

Sozomeni Historia Ecclesiastica edidit R. HUSSEY. Tomi III. 8vo. 15s.net.

Theodoreti Ecclesiasticae Historiae Libri Vrec.T. GAISFORD. 8vo. 7s. 6d. net.
Graecarum Affeotionum Curatio rec. T. GAISFORD. 8vo. 7s. 6d.

Notitia Scriptorum SS. Patrum. By J. G. BOWLING. 8vo.

7s. 6d. net.

8

Editions with English Commentaries
or Introductions

St. AthanashlS. Orations against the Arians. With an account of his
Life by W. BRIGHT. Crown 8vo. 9s.

Historical Writings, according to the Benedictine Text.
With an introduction by W. BRIGHT. Crown 8vo.
10s. 6d.

St. AugUStine. Select Anti-Pelagian Treatises, and the Acts of the

Second Council of Orange. With introduction by W. BRIGHT. Crown 8vo. 9s.

St. Basil : on the Holy Spirit. Revised text, with notes and introduction,
by C. F. H. JOHNSTON. Crown 8vo. 7s. 6d.

Barnabas, Editio Princeps of the Epistle of, by Archbishop Ussher, as
printed at Oxford, A.D. 161-2. With a dissertation by J. H. BACKHOUSE.
Small 4to. 3s. 6d.

Canons of the First Four General Councils of Nicaea, Con-
stantinople, Ephesus, and Chaicedon. With notes by W. BRIGHT. Second
edition. Crown 8vo. 7s. 6d.

Eusebius' Ecclesiastical History, according to Burton's text, with
introduction by W. BRIGHT. Second edition. Crown 8vo. 8s. 6d.

Eusebii Pamphili Evangelicae Praeparationis Libri XV.

Revised text edited, with introduction, notes, English translation, and indices,
by E. H. GIFFOHD. 4 vols. [Vois. I, II, text, with critical notes. Vol. Ill,
in two parts, translation. Vol. IV, notes and indices.] 8vo. 5 5s. net.
(Vol. Ill, divided into two parts, containing the translation, 1 5s. net.)

The Bodleian Manuscript of Jerome's Version of the

Chronicles Of Eusebius, reproduced in collotype, with an intro-
duction by J. K. FOTHERINGHAM. 4to, buckram. 2 10s. net.

John Of EpheSUS. Seep. 85. Translation, by R.PAYNE SMITH. 8vo. 10s.

Philo : about the Contemplative Life; or, the Fourth Book of

the Treatise concerning Virtues. Edited, with a defence of its genuineness,
by F. C. CONYBEARE. With a facsimile. 8vo. 14s. net.

Socrates' Ecclesiastical History, according to Hussey's Text, with
introduction by W. BRIGHT. Second edition. Crown 8vo. 7s. (Jd.

Tertulliani Apologeticus adversus Gentes pro Christianis. Edited by
T. H. BINDLEY. Crown 8vo. 7s. 6d. net.

De Praescriptione Haereticorum : ad Martyras : ad Scapulam.
Edited by T. H. BINDLEY. Crown 8vo. 5s. net.
9

Works of the English Divines. 8vo

Sixteenth, seventeenth, eighteenth and early

nineteenth centuries
Editions of Hooker and Butler

Hooker's Works, with Walton's Life, arranged by JOHN KEBLE. Seventh
edition, revised by R. W. CHUHCH and F. PAGET. 3 vols. 12s. each. [Vol. II
contains the Fifth Book.]

Introduction to Hooker's Ecclesiastical Polity, Book V.

By F. PAGET. Second edition. 5s. net.
The Text, as arranged by J. KEBLE. 2 vols. 11s.
The Works of Bishop Butler. By W. E. GLADSTONE. 2 vols.

14s. each. Crown 8vo, Vol. I, Analogy, 5s. 6d. ; Vol. II, Sermons, 5s.

Studies subsidiary to the Works of Bishop Butler.

Uniform with the above. I Os. 6d. Crown 8vo, 4s. 6d.

PEARSON'S Ex POSITION OFTIIE CREED. Revised by E. Burton. Sixtli edition. 1 Os. 6d.

MINOR THEOLOGICAL WORKS. Edited by E. Churton. 2 vols. 10s.
ENCHIRIDION Tn EOLOGIGUM ANTI-ROMANUM.

I. JEREMY TAYLOR'S Dissuasive from Popery, and Real Presence. 8s.
II. BARROW'S Supremacy of the Pope, and Unity of the Church. 7s. 6d.
III. Tracts by WAKE, PATRICK, STILLINGFLEET, CLAGETT, and others. 11s.
ADDISON'S EVIDENCES. 3s. 6d. net.

ALLIX'S WORKS. 4 vols. 5s. each. BENTLEY'S SERMONS. 4s.

BISCOE'S HISTORY OF THE ACTS. 9s. 6d.
BRAGGE'S WORKS. 5 vols. 1 12s. 6d.

BULL'S WORKS, with NELSON'S Life. Ed. by E. Burton. 8 vols. 2 9s.
BURNET'S EXPOSITION OF THE XXXIX ARTICLES. 7s.
BUTLER'S WORKS, 1849. 2 vols. Sermons. 5s. 6d. Analogy. 5s. 6d.
CLERGYMAN'S INSTRUCTOR. Sixth edition. 6s. 6d.
COMBER'S WORKS. 7 vols. 1 11s. 6d.
FELL'S PARAPHRASE ON ST. PAUL'S EPISTLES. 7s.
FLEETWOOD'S WORKS. 3 vols. XI Is. 6d.
HALL'S WORKS. Edited by P. Wynter. 10 vols. 3 3s.
HAMMOND'S PARAPHRASE ON THE NEW TESTAMENT. 4 vols. 20s.

PARAPHRASE ON THE PSALMS. 4 vols. 20s.

HORBERY'S WORKS. 2 vols. 8s. HOOPER'S WORKS. 2 vols. 8s.

JACKSON'S (DR. THOMAS) WORKS. 12 vols. 3 6s.
JEWEL'S WORKS. Edited by R. W. Jelf. 8 vols. 1 10s.
LESLIE'S WORKS. 7 vols. 40s.

LEWIS' (JOHN) LIFE OF WICLIF. 5s. 6d. LIFE OF PECOCK. 3s. 6d.
LEWIS' (THOMAS) ORIGINES HERRAICAE. 3 vols. 16s. 6d.
NEWCOMBE'S OBSERVATIONS. 6s. net.
PATRICK'S THEOLOGICAL WORKS. 9 vols. 1 Is.
SANDERSON'S WORKS. Edited by W. Jacobson. 6 vols. 1 10s.
SCOTT'S WORKS. 6 vols. 1 7s. SMALRIDGE'S SERMONS. 2 vols. 8s.

SHERLOCK'S DISCOURSES. 4 vols. 42s. net.
STILLINGFLEET'S ORIGINES SACIIAE. 2 vols. 9s.

GROUNDS OF PROTESTANT RELIGION. 2 vols. 10s.

STANHOPE'S PARAPHRASE. 2 vols. 10s. TAVERNER'S POSTILS. 5s. 6d.

WALL'S HISTORY OF INFANT BAFFISM. By H. Cotton. 2 vols. 1 Is.
WATERLAND'S WORKS, with Life by Van Mildert. 6 vols. 2 11s.

DOCTRINE OF THE EUCHARIST. 3rd ed. Cr. 8vo. 6s. 6d.
WHEATLEY'S ILLUSTRATION OF THE BOOK OF COMMON PRAYER. 5s.

10

Early Ecclesiastical History

The New Testament in the Apostolic Fathers. By a Com-
mittee of the Oxford Society of Historical Theology. 8vo. 6s. net.

The Church's Task under the Empire. With preface, notes,

and excursus, by C. BIGG. 8vo. 5s. net.

Bingham's Antiquities of the Christian Church, and other Works.
lOvols. 8vo. 3 3s.

The Church in the Apostolic Age. By W. W. SHIRLEY. Second
edition. Fcap 8vo. 8s. 6d.

Harmonia Symbolica: Creeds of the Western Church. By C.
HEURTLEY. 8vo. 6s. 6d.

A Critical Dissertation on the Athanasian Creed. By

G. D. W. OMMANNEY. 8vo. 16s.

Ecclesiae Occidentals Monumenta luris Antiquissima :

Canonum et Conciliorura Graecorum Intcrpretationes Latinae. Edidit
C. H. TITRNKR. 4to, stiff covers. Tom. I, Fasc. I, pars I, 10s. 6d. net; pars
II, 21s. net. Tom. II, pars I, 18s. net.

The Key of Truth : being a Manual of the Paulician Church of
Armenia. By F. C. CONYBEARE. 8vo. 15s. net.

Baptism and Christian Archaeology, being an offprint of studia

Biblica, Vol. V. By C. F. ROGERS. 8vo. 5s. net.

Ecclesiastical History of Britain, etc

Sources

Adamnani Vita S. Columbae. Edited, with introduction, notes,
and glossary, by J. T. FOWLER. Crown 8vo, leather back. 8s. 6d. net.
With translation, 9s. 6d. net.

Uaedae Opera Historica. Edited by C. PLUMMER. ,. Two volumes.
Crown 8vo. 21s. net.

Councils and Ecclesiastical Documents relating to Great

Britain and Ireland. Edited after Spelman and Wilkins, by A. W. HADDAN
and W. STUBBS. Medium Bvo. Vols. I-III, 63s. net. Also Vol. II (Parts I and
II) and Vol. Ill, separately, 14s. net per volume.

Nova Legenda Angliae, as collected by John of Tynemouth and
others, and first printed 1516. Re-edited 1902 by C. HORSTMAN. 2 vols.
8vo. 1 16s. net.

Wyclif. A Catalogue of the Works. By W. W. SHIRLEY. 8vo. 3s. 6d.
Select English Works. By T. ARNOLD. 3 vols. 8vo. 1 Is. net.
Trialogus. First edited by G. LECHLER. 8vo. 7s.

Cranmer's Works. Collected by H. JENKYNS. 4 vols. 8vo, 1 10s.

4 Cranmer's ' Catechism with the Latin Original. Edited by
EDWARD BURTON (1829). 8vo, with woodcuts. 7s. 6d. net.

11

Records of the Reformation. The Divorce, 1527-1533. Mostly

now for the first time printed. Collected and arranged by N. POCOCK. 2 vols.
1 16s.

Primers put forth in the reign of Henry VIII. Svo. 5s.
The Reformation of Ecclesiastical Laws, as attempted in the

reigns of Henry VIII, Edward VI, and Elizabeth. Edited by E. CAUDWELL.
Svo. 6s. 6d.

Conferences on the Book of Common Prayer from 1551 to

1690. Edited by E. CARDWELL. Third edition. Svo. 7s. 6d. net.

Documentary Annals of the Reformed Church of

England ; Injunctions, Declarations, Orders, Articles of Inquiry, etc, from
1546 to 1716. Collected by E. CAHDWELL. 2 vols. Svo. 25s. net.

Formularies of Faith set forth by the King's authority during
Henry VIII 's reign. Svo. 7s.

Homilies appointed to be read in Churches. By J. GRIFFITHS. Svo. 7s. 6d.

Hamilton's Catechism, 1552. Edited, with introduction and
glossary, by T. G. LAW. With a Preface by W. E. GLADSTONE. Svo. 12s. d.

Noelli CatechismUS sive prima institutiodisciplinaquePietatisChristianae
Latine explicata. Editio nova cura G. JACOBSON. Svo. 5s. 6d.

Sylloge Confessionum sub tempus Reformandae Ecclesiae edit. Subjic.
Catechismus Heidelbergensis et Canones Synodi Dordrecht. Svo. 8s.

Histories written in the seventeenth (or early

eighteenth) and edited in the nineteenth century

Stillingfleet's Origines Britannicae, with LLOYD'S Historical

Account of Church Government Edited by T. P. PANTIN. 2 vols. Svo. 10s.

Inett's Origines Anglicanae (in continuation of Stillingfleet). Edited
by J. GRIFFITHS. 1855. 3 vols. Svo. 15s.

Fuller's Church History of Britain. Edited by J. s. BREWER.

1845. 6 vols. Svo. 2 12s. 6d. net.

Le Neve's Fasti Ecclesiae Anglicanae. Corrected and con-
tinued from 1715 to 1853 by T. D. HARDY. 3 vols. Svo. 1 10s. net.

Strype's Memorials of Cranmer. 2 vols. 8vo. us. net. Life of

Aylmer. Svo. 5s.6d.net. Life of Whitgift. 3 vols. Svo. lGs.6d.net.
General Index. 2 vols. Svo. lls.net.

Burnet's History of the Reformation. Revised by N. POCOCK.

7 vols. Svo. 1 10s.

Prideaux's Connection of Sacred and Profane History. 2 vols. Svo.
10s. Shuckford's Continuation, 10s.

Gibson's SynoduS AngllCana. Edited by E. CARDWELL. 1854.
Svo. 6s.

12

Recent Works in English Ecclesiastical History

History of the Church of England from the abolition of the
Roman Jurisdiction. By fJiV. R. DIXON. - 3rd edition. 6 vols. 8vo. 16s. per vol.

Chapters of Early English Church History. By w. BRIGHT.

Third edition. Withatnap. 8vo. 12s.

Registrum Sacrum Anglicanum : an attempt to exhibit the course
of Episcopal Succession in England. By W. STUUHS. 2nd ed. 4to. 10s. 6d.

The Elizabethan Clergy and the Settlement of Religion, 1558-1564.
By HENRY GEE. With illustrative documents and lists. 8vo. 10s. 6d. net.

Liturgiology

Liturgies, Eastern and Western. Vol. i. Eastern Liturgies.

Edited, with introductions and appendices, by F. E. BRJGHTMAN, on the basis
of a work by C. E. HAMMOND. Hvo. 1 Is. net.

Rituale Armenorum : the Administration of the Sacraments and the
Breviary Rites of the Armenian Church, with the Greek Rites of Baptism
and Epiphany. Edited by F. C. CONYBEARE ; with the East Syrian Epiphany
Rites, translated by A. J. MACLEAN. 8vo. 21s. net.

CardwelTs Two Books of Common Prayer. Ed. 3. 8vo. 7s. net.

Gelasian Sacramentary, Liber Sacramentorum Romanae Ecclesiae.
Edited by H. A. WILSON. Medium Bvo. 18s. net.

LeofriC Missal, with some account of the Red Book of Derby, the Missal
of Robert of Jumteges, etc. Edited by F. E. WARREN. 4to. 1 10s. net.

Ancient Liturgy of the Church of England, according to the

Uses of Sarum, York, Hereford, and Bangor, and the Roman Liturgy
arranged in parallel columns. By W. MASK ELL. 8vo. 15s. net.

Monumenta llitualia Ecclesiae Anglicanae : the occasional

Offices of the Church of England according to the old Use of Salisbury, the
Prymer in English, and other prayers and forms, with dissertations and
notes. By the same. Second edition. Three volumes. 8vo. 2 10s. net.

The Liturgy and Ritual of the Celtic Church. By F. E.

WARREN. Hvo. 16s. net.

Sharp on the Rubric. 8vo. 6s. net.

Helps to the Study of the Book of Common Prayer. By

W. R. W. STEPHENS. Crown 8vo. Cloth, 2s. 6d. net ; also in leather bindings.
Printed on Oxford India paper and bound with the Prayer Book, from 11s. 6d.

The Oxford Hymn Book

Music Edition. Crown 8vo, Ss. 6d. net ; gilt edges, 4s. net ; India

paper, 5s. net. Wbl'ds Only. Crown 8vo, Is. 6d. net ; gilt edges,
2s. net ; India paper, 3s, net. 32mo, cut flush, 6d. net ; cloth boards, 9d. net ;
India paper, 2s. net.

13

PHILOSOPHY

Modern Philosopny

Bacon's Novum Organum, edited, with introduction, notes, etc,
by T. FOWLER. Second edition. 8vo. 15s.

Novum OrgailUm, edited, with notes, by G. W. KITCHIN.
8vo. 9s. 6d.

Bentham's Introduction to the Principles of Morals and
Legislation. Crown 8vo. 6s. ed.

The Works of George Berkeley, formerly Bishop of Cloyne. With
prefaces, annotations, appendices, and an account of his Life and Philosophy,
by A. C. PHASER. New edition (1901) in crown 8vo. Four volumes. 1 4s.
Some copies of the 8vo edition of the Life are still on sale, price 16s.

Selections from Berkeley, with introduction and notes, for the use of
Students. By the same Editor. Fifth edition. Crown 8vo. 7s. 6d.

The Cambridge PlatonistS : being selections from the Writings of
Benjamin Whichcote, John Smith, and Nathanael Culverwel, with introduc-
tion by E. T. CAMPAGNAC. Crown 8vo. 6s. 6d. net.

Leibniz's Monadology and other Philosophical Writings, translated,
with introduction and notes, by R. LATTA. Crown 8vo. 8s. 6d.

Locke's Essay concerning Human Understanding.

Collated and annotated with prolegomena, biographical, critical, and historical,
by A. C. FBASEH. Two volumes. 8vo. 1 12s.

Locke's Conduct of the Understanding. Edited byT. FOWLER.

Extra fcap 8vo. 2s. 6d.

A Study in the Ethics of Spinoza. By H. H. JOACHIM. 8vo.

10s. 6d. net.

Hume's Treatise of Human Nature. Edited by L. A. SELBY-

BIOGE. Second edition. Crown 8vo. 6s. net.

Hume's Enquiry concerning the Human Understanding,

and an Enquiry concerning the Principles of Morals. Edited by L. A.
SELBY-BIGGE. Crown 8vo. Second edition. 6s. net.

British Moralists, being Selections from writers principally of the
eighteenth century. Edited by L. A. SELBY-BIGGE. Two volumes. Crown
8vo. 12s. net. Uniform with Hume's and Berkeley's Works.

Butler's Works, edited by W. E. GLADSTONE. Two volumes. Medium
8vo, 14s. each, or Crown 8vo, 10s. 6d. Also, separately Vol. I (Analogy),
5s. 6d. Vol. II (Sermons), 5s.

The Optimism of Butler S Analogy. The Romanes Lecture,
1908. By HENRY SCOTT-HOLLAND. 2s. net.

14

Recent Philosophy

Kant's Theory Of Knowledge. By H. A.PRICHARD. 8vo. 6s. Gd. net.

The Logic of Hegel, translated from the Encyclopaedia of the Philo-
sophical Sciences, with* Prolegomena, by W. WALLACE. Second edition.
Two volumes. Crown 8vo. 10s. 6d. each.

Hegel's Philosophyof Mind,translated,with five introductory essays,

by W. WALLACE. Crown 8vo. 10s. 6d.
Lotze's Logic, in Three Books of Thought, of Investigation, and of

Knowledge. Translated by B. BOSANQUET. Seconded. 2 vols. Cr. 8vo. 12s.
Lotze's Metaphyslc, in Three Books Ontology, Cosmology, and

Psychology. Translated by B. BOSANQUET. Seconded. 2 vols. Cr. 8vo. 12s.

BluntSChli's Theory of the State. Translated from the sixth
German edition. Third edition, 1901. Crown 8vo, half-bound, 8s. 6d.

Green's Prolegomena tO Ethics. Edited by A. C. BRADLEY. Fifth

edition, 1906. With a Preface by E. CAIRD. Crown 8vo. 6s. net.
Types Of Ethical Theory, by J. MAHTINEAU. Third edition. Two

volumes. Crown 8vo. 15s.
A Study of Religion : its Sources and Contents. By the same

author. Second edition. Two volumes. Crown 8vo. 15s.
The Principles Of Morals. By T. FOWLER and J. M. WILSON. 8vo.

14s. Also, separatelyPart I, 3s. 6d. Part II, 10s. 6d.

Logic; or, The Morphology of Knowledge. By B. BOSANQUET.

Two volumes. 8vo. 1 Is. net.

Lectures and Essays on Natural Theology and Ethics.

By W. WALLACE. Edited by E. CAIRD. With portrait. 8vo. 12s. 6d.

Studies in History and Jurisprudence. By Rt. Hon. j. BRYCE.

1901. 2 vols. 8vo. 1 5s. net.

The Theory Of Good and Evil. By H. RASHDALL. 8vo. 2 vols.
Us. net.

The Herbert Spencer Lectures. 8vo. 1905, by FREDERIC HARRISON.

2s.net 1906. TheVoluntaryist Creed. By AUBERON HERBERT. 2s.net. 1907.
Probability, the Foundation of Eugenics. By FRANCIS GALTON. Is. net.
1908. Individualism and After. By BENJAMIN KIDD. Is. net.

An Introduction tO Logic. By H. W. B. JOSEPH. 8vo. 9s. 6d. net.

Essay On Truth. By H. H. JOACHIM. 8vo. 6s. net

The Ethical Aspects Of Evolution. By W. BENETT. 6s. net.

Elementary Logic
The Elements of Deductive Logic. By T. FOWLEH. Tenth

edition, with a collection of examples. Extra fcap 8vo. 3s. 6d.

The Elements of Inductive Logic. By the same. Sixth edition.
Extra fcap 8vo. 6s. In one volume with Deductive Logic, 7s. 6d.

15

ORIENTAL LANGUAGES

See also Anecdota Oxoniensia, p. 98.

Sacred Books of ttfe East

Translated by various Scholars, and edited by the late
Right Hon. F. MAX MULLER. Forty-nine volumes

An Index Volume (Vol. L) is in the press.

Sacred Books of India. Brahmanism
Twenty-one volumes

VedlC Hymns, Part I, translated by F. MAX MULLER. Part II, translated
by H. OLDENBERG. Two volumes (XXXII, XLVI). 18s. 6d. and 14s.

Hymns Of the Atharva-Veda, translated by M. BLOOMFIELD.
One volume (XLII). 21s.

The *Vatapatha-Brahma/?a, translated by JULIUS EGGELING.

Five volumes (XII, XXVI, XLI, XLIII), 12s. 6d. each ; (XLI V), 18s. 6d.
The Gr/hya-SlltraS, translated by H. OLDENBERO.

Two volumes (XXIX, XXX), each 12s. 6d.
The Upanishads, translated by F. MAX MULLER.

Two volumes (I, XV Second edition), each 10s. 6d.

The Bhagavadglta, translated by KASHINATH TRIMBAK TELANG.

One volume (VIII), with the Sanatsu^atiya and Anugita. 10s. 6d.

The Vedanta- SlltraS, with tfahkara's Commentary, by G. THIBAUT.

Two volumes (XXXIV, XXXVIII), each 12s. 6d.

The third volume (XLVIII) with Ramanuya's tfribhashya. 25s.

Vol. XXXIV Part I of the Vedanta-Stitras 'is temporarily out of print.

The Sacred LaWS Of the AryaS, translated by G. BOHLEU.

Two volumes (II (Second edition) and XIV), each l()s. (id.
The Institutes of Vish/m, translated by Juuus JOLLY.

One volume (VII). 10s. 6<L
Manu, translated by GEORG BUHLER. One volume (XXV). 21s.

The Minor Law-books, translated by JULIUS JOLLY.

One volume (XXXIII, Narada, Brihaspati). 10s. 6d.

Jainism and Buddhism. Twelve volumes

The 6?aina-SutraS, translated from Prakrit by H. JACOBI.

Two volumes (XXII, XLV). 10s. (id. and 12s. 6d.
The Saddharma-pUft/arika, translated from Sanskrit by H. KERW.

One volume (XXI). 12s. 6d.
MaMyana Texts, by E. B. COWELL, F. MAX MULLER, and I. TAKAKUSU.

One volume (XLIX). From the Sanskrit. 12s. 6d.

The Dhammapada and Sutta-Nipata, translated t>y F. MAX

MULLER and V. F^USBOLL. One vol. (X, Ed. 2). From the Pali. 10s. 6d.
Buddhist Suttas, translated from the Pali by T. W. RHYS DAVIDS.
One volume (XI). 10s. 6d.
16