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ART. VIII.→ Théorie des Peines et des Récompenses, &c. Theary of Punishments and Rewards, by Jeremy Bentham, Barrister at Law. Rendered into French, after the MSS, by M. Etienne Dumont, of Geneva, 2 Toms. 8oo. Dulau, 1811.

THE name of Bentham is celebrated all over Europe for the extent and importance of his literary labours on the subject of laws and government; and he is the only author with whom we are acquainted who has written so much'and so well, but through modesty or indolence, or the multiplicity of avocations, or all three united, has shrunk from the responsibility of editing what he has written. It is fortunate for his own reputation, and still more so (which is of infinitely greater importance), for the interests of society, that he has found in M. Dumont an admirer who readily undertakes the task which he declines, of reducing into a form proper for publication the loose, and perhaps unarranged manuscripts which have been committed, with unlimited powers, to his hands. That this gentleman is in every respect competent to the office he has assumed, the Treatise on Legislation,' published in 1802, sufficiently evinces. Notwithstanding which, we cannot forbear entertaining a wish, that the author had submitted to the trouble of becoming his own editor, because it is always more satisfactory to know that you have the writer's last sentiments upon the subject which he discusses, and that it is impossible to rest entirely satisfied with the general assurance that his opinions remain, in every particular, unaltered from the period of composition to the present moment. In this instance, it is even difficult to believe the fact, that'a lapse of thirty years (a most wonder-working interval in the life of the longest liver, the interval between infancy and perfect manhood, and from manhood again to absolute decrepitude), çan have operated no change whatever in the sentiments of a reflecting man, or not to suppose, that the same moti: es which have deterred him from publishing, prevented him, also, from even referring to papers written so very long ago, though but for the purpose of satisfying himself, that his assertion was correct. Another reason induces us peculiarly to wish, in the present case, that Mr. Bentham had submitted to become the publisher of his own works. Those works are a national honour, and we are sorry to think, that France may hereafter have any pretension to CRIT. REV. Vol. 1, January, 1812.

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dispute with England that honour which we would have had solely and exclusively our own. In addition to all this, M. Dumont has, by his own confession, used the privileges of an editor with freedom.' According to the nature of the text or the occasion,' he has translated or commented, abridged or enlarged,' after which confession, it is not easy to remain perfectly satisfied with the assurance, that after all, it is not the work of M. Dumont himself which he presents to us, but that of his friend, Mr. Bentham. Be it, however, clearly understood, that by these observations, we mean not to imply the slightest censure upon the editor, who has, as we have every reason to believe, discharged his trust with all possible faithfulness as well as ability; for it was not in the nature of things, that in reducing a mass of unconnected, or, at the best, of incomplete and ill-arranged manuscript notes to the shape of a regular treatise, the necessity should not often have occurred of such deviations from the original as are here noticed. We also think, that the editor was perfectly right in supplying apparent gaps or deficiencies out of the before published works of the same author. Thus, the whole of the present chapters on Transportation and the Panopticon,' are taken from the Letters to Lord Pelham,' on those subjects, published, we believe, in the year 1804 and a few other chapters are borrowed from the Treatise on Legislation,' before mentioned. The present work, indeed, so far as relates to Punishments, is, as M. Dumont says, but the filling up of the map already sketched in that earlier publication. The part relating to Rewards,' is entirely new, and claims the high merit of perfect originality.

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We now proceed to give some account of the contents and arrangement of the book itself. The first volume is divided into five books, with the following titles. Principes Generaux-Des Peines Corporelles-Des Peines Privatives-Des Peines Déplacées-Des Peines Complexes.'

His definition of punishment in general, is this- C'est infliger un mal à un individu, avec une intention directe par rapport à ce mal, à raison de quelque acte qui parait avoir été fait ou omis.' It follows, that any evil inflicted on another out of hostility or malice, revenge or antipathy, cannot be an act of punishment; and Johnson is clearly wrong where he explains Punishment-any infliction of pain in vengeance of a crime.' Also all cases in which the intention is indirect, in which the evil inflicted is only the means, and not the end, are necessarily excluded from this

definition. Such, for example, as many acts of prevention or of constraint; of torture, for the sake of obtaining information; of personal defence; of personal preservation; of pecuniary satisfaction. These are, in fact, principles which may enter into the composition of punishment; but many actions which are solely referrible to them, have nothing to do with the just notion of punishment here inculcated.

The next definition proposed in this introductory chapter, is that of Legal Punishment.'

'D'après le principe de l'Utilité, les Peines légales sont des maux infligés, selon des formes juridiques, à des individus convaincus de quelque acte nuisible, défendu par la loi, et dans le but de prévenir de semblables actes.'

The readers of the Traités de Legislation,' will remember our author's former classification of punishmentsPeines corporelles and privatives; and the subdivision of these into Peines simplement afflictives, Peines afflictives complexes, Peines restrictives, actives ou laborieuses, capitales; and into Peines de perte and des déchéances. The end of punishment is twofold, prevention and reparation. The former, as applied to the individual delinquent, consists of incapacitation, reformation, intimidation. But the principal end of punishment is that of prevention to the community at large. Reparation consists in satisfaction to the party injured, and may be made by the criminal, especially by means of pecuniary penalties.

The chapter entitled Dépense des peines,' (p. 16), opens with the following very useful and philosophical reflections.

Expence of Punishments.-This expression, which is not yet admitted into common usage, will be at first condemned as singular and far-fetched: nevertheless, it has been deliberately chosen as the only one fit to present the idea which is intended by it. The evil produced by punishments is something expended by the state with a view to profit. This profit is the prevention of crimes. In this operation, there ought to be nothing but a calculation of loss and gain.' The term expence, once admitted, necessarily induces those of economy or frugality. In common language, we talk of the mildness or rigour of punishments. These two expressions carry with them a prejudice in the way of favour or the contrary, which may injure the impartiality of examination. To call a punishment mild (douce), is to associate contradictory ideas; to call it economical, is to borrow the language of calculation and reason. We shall then speak of a punishment as economical, when it produces the desired effect with the least possible suffering, and as prodigal (trop dispen

dieuse), when it involves an evil more than equivalent to the pro fit, or when the same result may be obtained at the price of a lesser suffering.'

Pursuing the same system of nomenclature, punishments are again classed according to their real and apparent value. It is wisely and humanely observed, that it is not only the party injured or the public, whose interests aré to be considered. The interests of the criminal are as much to be consulted as either, and if the same effect can be produced by the appearance as by the reality of punishment, by hanging in effigy, as by a bonâ fide suspension, there is no doubt which to prefer. The following curious anecdote is related in this place from Lloyd's Evening Post of September, 1776.

At the Cape of Good Hope, the Dutch employed a stratagem which could hardly have succeeded except with the Hottentots. One of the company's officers had killed an individual belonging to this inoffensive tribe. All his countrymen took part in the injury, and an example became necessary for their pacification. The delinquent was brought before them, fettered as a criminal, He underwent all the formalities of justice, was condemned, and made to swallow a goblet full of buruing brandy. The man acts his own part, counterfeits death, and is carried off the stage wrapped in a cloak. The Hottentots declared themselves completely satisfied. The worst they could have done, would have been to throw the man into the fire; but the Dutch had inflicted a much more exemplary punishment, by pouring fire into the man.' P. 18, note.

The following chapter regards the measure of punishments, and the first rule here laid down, is, that the evil of the punishment must exceed the profit of the crime, meaning, in the word profit, to include all the real or apparent advantage which has served as a motive to the of fence.' Profit is the force which impels men to the commission of crime, in contradistinction to punishment, which is the force employed to turn them aside from it.' All this is very just, but in the dry calculation which follows, we think, that two little allowance is made for the operation of the tutelary motives of feeling, religion, and honour; motives, from the influence of which, few, if any, are so abandoned as to be entirely exempt; and we are also far from being satisfied, that the greatness of the temptation ought to be a measure for the increase of punishment, instead of being a measure for the diminution of it, as it is considered by Adam Smith and many other writers. The greatness of the temptation assuredly diminishes the moral guilt, and the question we would put, is, whether the evil

of confounding the moral sense of mankind, does not preponderate against the advantage of preventing a particular injury? Mankind is too apt to estimate all things by their effects, and there is surely some danger, lest, in affixing the same degree of punishment to murder and to forgery, we weaken that natural feeling which revolts from the idea of bloodshed infinitely more than from that of pecuniary injury. This apprehension becomes much stronger, if, instead of forgery (the danger of which, in a commercial country particularly, renders men almost blind as to the actual quantum of the moral guilt), we take the examples of horse-stealing and shop-lifting. Indeed, we apprehend, that this will prove the chief ground of difference between our opinions and Mr. Bentham's (of which, however, we would always speak with the greatest respect), throughout the course of the present work, The doctrine of expcdience seems to us to have carried him even to a forgetfulness of the principle itself. For, if it is expedient to use extraordinary means for the prevention of some particular evil which is otherwise of easy occurrence, we would say, that it is still more expedient to preserve uninjured that precise and delicate sense of right and wrong which providence has implanted in our very natures, and which is a more effectual preservative both of states and governments when aided by law, than the most coercive law can be, if instituted without reference to it.

Secondly. When the action is of such a nature as to furnish a conclusive proof of habit, the punishment must be so strong as to exceed the profit, not only of the individual offence, but of all similar offences which may have been committed by the same delinquent, unpunished.'

This is a very just and important rule, which ought to be remembered in every system of criminal law.

Thirdly.-The punishment ought to exceed the profit of the offence so far as to make up what the punishment wants in point of certainty and proximity.'

Fourthly. Of two or more concurrent offences, the most hurtful ought to incur the greatest punishment, in order that the delinquent may have a motive for stopping at the least.'

For example, in the often cited instances of simple robbery, and of robbery accompanied by murder.

Montesquieu, after recommending this rule, adds: "When there is no difference in the punishment, a difference must be made in the hope of pardon: thus, in England, assassination never (he should have said seldom) occurs, because robbers have the hope of transportation, which murderers have not.' Esprit des L. VI. 15.