sioned, or to be about to occasion, some particular mischief to some particular individual. In this they differ from semi-public offences, and from public.
] 2. 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.
LXIII.
Characters 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. <^"^p- 6. As such, there is never any one particular ' — v^ — ' 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 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. There may be ground for punishing them before they have been proved to have occasioned, or to be about to occasion, mischief to any particular individual; which is not the case with private offences.
11. In no cases can satisfaction given to any particular individual, affected by them be a sufficient ground for remitting punishment: for by VOL. II. Q 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 Characters of Class 3; consisting of self-regardof Class S. ' O - ING offences: offences against ones aelf.
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^, a mischief of the derivative kind;|; may happen to devolve upon him§.
* 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, shews by his conduct that he is not sensible of it.
t See ch, vi. [SensibilityJ xxv. xxvi.
X See ch. xii. [Consequences] iv.
^ Among the offences, however, which belong to this DIVISION OF OFFENCES. '^^7' 6. The mischief they produce is apt to be un- ^J'^^''-obvious, and in general more questionable than ' ^^ ' that of any of the other classes*.
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 offences.
8. They are less apt than offences of any other class to require different descriptions in different states and countries f.
9. Among the inducements J 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 class, there are some which in certain countries it is not uncommon for persons to be disposed 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.
* See note* in the preceding page.
t Accordingly, most of them are apt to be ranked among offences against the law of nature. Vide supra, Characters of the 1st class, Ixii. note.
X [Inducements.] I mean the considerations, right or wrong, which induce or dispose the legislator to treat them on the footing' of offences.
Chap, productivc of a mischief, which, if real, will place ' — V — ' 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.
LXV.
of'ciafsT Characters of Class 4; consisting of public offences, or 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. ^ 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 unobvious; 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 Chap.
I. XVI.
the censure of the world, than private offences; ' — v — ' less even than semi-public, or even than selfregarding 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 characters 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, without 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 uncei^tainty of it.
^« Y' ^ ^ • I^^ ^^^ ^^^^ ^^"^ satisfaction, given to any "^ — V — ' particular individual affected by them, be a sufficient ground for remitting punishment. In this they differ from private offences; but agree with semi-public.
LXVI.
ci.aiact<rrs Characters of Class 5, or appendix: composed of MULTIFORM or ANOMALOUS oltences; and containing offences by falsehood, and offences concerning trust.
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 subdivisions, 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*. In other instances, the oflPence may subsist without it; and where it interferes, it comes in as an accidental independent circumstance, capable of constituting a ground of aggravation f.
* Instance, offences by falsehood, in the case of defraudment.
t Instance, offences by falsehood, in the case of simple corporal injuries, and other offences against person.
CHAP. XVII.
§ I. LIMITS BETWEEN PRIVATE ETHICS AND THE ART OF LEGISLATION.
Use of tiiis So much for the division of offences in general.
chapter.
Now an offence is an act prohibited, or (what comes to the same thing) an act of which the contrary is commanded by the law: and what is it that the law can be employed in doing, besides prohibiting 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 dealing 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*. Between * And the constitutional branch, what is become of it? Such is the question which many a reader will be apt to put. An answer that might be given is — that the matter of it might without much violence be distributed under the two other heads. But, as far as recollection serves, that branch.
OF THE LIMITIS OF THE, &c. ^33 these two branches then, it is evident enoiieh. Chap.
there cannot but be a very intnnate connection; ^^ — v — ' 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 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 w^hich 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 notwithstanding its importance, and its capacity of being lodged separately from the other matter, had at that time scarcely presented 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 paragraphs xxii. to the end, the omission may be seen in some measure supplied.
Chap, proctdure; and the rest of the law at large: — All ^ — V — ' 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.
II. Ethics in ge- Ethics at large may be defined, the art of neral, w)iat. ^.
directing men's actions to the production of the greatest possible quantity of happiness, on the part of those whose interest is in view.
III. Private What tlicu are the actions 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 stiled the art of self -got eminent, or private ethics.
IV.
The art of What otlicr agcuts then are there, which, at tl^at is!™oT^ the same time that they are under the influence a?d* admiui- of mau's directlon, are susceptible of happiness? stration. rpj^^^ ^^^ ^£ ^^^^ ^^^.^^. j Qthcr huiiian beings who are stiled persons. 2. Other animals, which on account of their interests ha\ing been neglected by the insensibility of the ancient jurists, stand degraded into the class of things*. As to other ^hajhuman beings, the art of directing their actions ^ ^ — ' * Under the Gentoo and Mahometan religions, the inte- interests of rests of the rest of the animinal creation seem to have met ^ ^ m enor animals imwith some attention. Why have they not, universally, with properly ncslcctcd in as much as those of human creatures, allowance made for the leaisiation. 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 reason why we should be suffered to torment them? Not any that I can see. Are there any why we should not he 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 jnay come, when the rest of the animal creation may acquire those rights which never could have been witholden 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 cahon.
CuAv. 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 displays itself in are of a permanent nature, is generally distinguished by the name of legislation: as it is by that o{ administration, when they are of a temporary nature, determined by the occurrences of the day.
V.
Art of edu- Now humau creatures, considered with respect to the maturity of their faculties, are either in an adult, or in a non-adult state. The art of goverment, in as far as it concerns the direction of the actions of persons in a non-adult state, may be termed the art of education. In as far as this business is entrusted with those who, in virtue of some private relationship, are in the main the best without redress to the caprice of a tormentor*. 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 abandoning 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 conversible 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?
* Sec Lewis XlVlh's Code Noir.
disposed to take upon them, and the best able to ^y\l' discharge, this office, it may be termed the art of ' '^ ' private education: 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.
VI.
As to ethics in general, a man's happiness will Ethics exWdepend, m the first place, upon such parts or his of, i. Prubehaviour as none but himself are interested in; 2. Probity. in the next place, upon such parts of it as may eence"*^ affect the happiness of those about him. In as far as his happiness depends upon the first-mentioned part of his behaviour, it is said to depend upon his duti^ 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 persons 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 Chap, neighbour may be consulted in two ways: 1. In a ^ — V — ' negative way, by forbearing to diminish it. 2. In a positive way, by studying to encrease 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.
VII.
Probity and It may here be asked. How it is that upon the how they principle of private ethics, legislation and religion prudence.' ^ut of tlic qucstiou, a mau's happiness depends upon such parts of his conduct as affect, 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 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 motives for consulting, are his own. Notwithstanding this, there are no occasions in which a man has not some motives for consulting the happiness of other men. In the first place, he has, on all occasions, the purely social motive of sympathy or benevolence: in the next place, he has, on most occasions, the semi-social motives of love of amity and love of reputation. The motive of sympathy will act upon him with more or less Chap. effect, according to the bias of his sensibility*: ^ — v — ' the two other motives, according to a variety of circumstances, principally according to the strength of his intellectual powers, the firmness and steadiness of his mind, the quantum of his moral sensibility, and the characters of the people he has to deal with.
Now private ethics has happiness for its end: ^^'f 7 ^'^^ and legislation can have no other. Private ethics P,'"?pe'*, ^ object of concerns every member, that is, the happiness and ethics is not the actions of every member of any community tion. that can be proposed; and legislation can concern no more. Thus far, then, private ethics and the art of legislation 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 conduct to the production of his own happiness, and of Ch. vi. [Sensibility] iii.
Chap, that of his fcUow-creatures: but there are cases ' — V — ' 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 direct the conduct of the several other members of the community. 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 legislator ought to compel him to perform. Every act which promises to be pernicious upon the whole to the community (himself included) 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.
IX.
The limits Where then is the line to be drawn? — We shall provinces of not havc far to seek for it. The business is to ethics and givc au idea of the cases in which ethics ought, marked out and iu wliich legislation ought not (in a direct unraeetTr mauucr at least) to interfere. If legislation interpunishment. O • J'i. 'j. i-L-L •!
^ teres m a direct manner, it must be by punishment*. Now the cases in which punishment, meaning the punishment of the political sanction.
* 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 wliether the application of it can, properly speaking, be termed an act of legislation, See infra, § 3.
ought not to be inflicted, have been already stated *. ^"^ i'-If then there be any of these cases in which, al- "^ — v — ' though legislation ought not, private ethics does or ought to interfere, these cases will serve to point out the limits between the two arts or branches of science. These cases, it may be remembered, are of four sorts: 1. 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.
X.
X.
1. First then, as to the cases where punishment i. Neither would be groundless. In these cases it is evident, °^\y where^" that the restrictive interference of ethics would be \sgnundkis. 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.
XI.
2. As to the cases in which punishment would 2. How far ■"■ private be inefficacious. These, we may observe, may be e'h'" can...apply in the divided into two sets or classes. The first do not cases where punishment depend at all upon the nature of the act: they would be turn only upon a defect in the timing of the * Ch. xiii. [Cases unmeet,] VOL. II. R 242 QY THE LIMITS OF THE punishment. The punishment in question is no more than what, 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 ei'-post-facto law; of a judicial sentence beyond the law; and of a law not sufficiently promulgated. The acts here in question then might, for any thing 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 a7iy sort may chance to be accompanied. These, however, are of such a nature as not only to exclude the application 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 extraordinary force of artificial punishment: as in the cases of extreme 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 respect to the event of the action, unconsciousiiess with regard to the circumstances, and mis- ^^^-J'-supposal with regard to the existence stances 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 mischief. 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 Ijo« far, where it unprofitable. These are the cases which constitute would be unthe great field for the exclusive interference of private ethics. When a punishment 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 *, is distinguishable into four branches: 1. 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-mentioned 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 * See ch, xiii. [Cases unmeet.] § iv.
^"*^- committed, or been prompted to commit, the acts "^ — ^^ — ' really meant to be prohibited. In the next place, persons 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 supposition not mischievous, to prevent them is what it can no more be the business of ethics to endeavour at, than of legislation. It remains to shew how it may happen, that there should be acts really pernicious, v/hich, although they may very properly come under the censure of private ethics, may yet be no fit objects for the legislator to controul.
Which it Punishment then, as applied to delinquency, Although may be unprofitable in both or either of two the guilty, ways: 1. By the expence 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 expence of the punishment, as applied to the guilty, would outweigh the profit to be made by it. These cases, it is evident, depend upon a certain pro- XVI 1.
XVI 1.
portion between the evil of the punishment and Chap. the evil of 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 instance 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 shewn*, 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 proportion will be rendered precarious, by a variety of circumstances: by the want of sufficient promulgation on the part of the lawf: by the particular circumstances of the temptation X: and by the circumstances influencing the * Ch. xiv. [Proportion] xviii. Rule 7t Ch. xiii [Cases unmeet] § iii. Append, tit. [Promulgation.]
X Ch. xi. [Disposition] xxxv. &c.
54G OF THE LIMITS OF THE c,"-*^- sensibility of the several individuals who are ex-' — ^ — ' posed to it*. 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 fascinated by the force of the seducing motives) appear too improbable 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 reducing the quantum of the other: the 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 ilhcit commerce between the sexes, has commonly either gone altogether unpunished, or been punished in a degree inferior to that in