THE

EDINBURGH REVIEW,

OCTOBER, 1813.

No. XLIII.

ART. I. Theorie des Peines et des Recompenses. Par M. Jeremie Bentham, Jurisconsulte Anglois. Redigée en François d'après les Manuscrits, par M. Et. Dumont de Génève. 2 vol. 8vo. pp. 800. à Londres, Dulau, 1811.

WE

E have already had occasion to mention this very interesting work, and to express our regret at the accidents which more than once interfered with the design of laying its contents before our readers. We are at length enabled to accomplish this purpose; and the delay which has occurred, by affording additional time for meditating upon the subject, has only confirmed the conviction originally entertained, of the essential services rendered to the most important branch of legislation by this promulgation of Mr Bentham's doctrines.

It is to Mr Dumont, upon the present as on a former occasion, that we are indebted for a knowledge of these valuable speculations. The greater part of them had been completed, as far as their author did complete them, above 30 years before the date of the present publication. During that long period they had lain in his repositories neglected by him, or considered as materials for a branch of his great work on Legislation, into which they might enter at some future time-or perhaps only regarded as notes amassed for his own use, in the course of his private studies. Had not the same zealous and friendly hand interposed, to which we owe the Traités de Legislation, ** this treatise, although almost complete in itself, and perfectly capable of being separated from the vast system of practical ethics to which it naturally belongs, would in all probability have been withheld till the period at which that work may be finished, with the still

VOL. XXII. NO. 43.

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See our account of this admirable work in Vol. IV. Ed. Rev.

Oct.

2 Bentham's Theory of Punishments, by Dumont. greater chance of its entire suppression, owing to the extreme fastidiousness of Mr Bentham upon the subject of his own compositions. Happily, Mr Dumont prevailed upon him to confide the materials to his care; and, notwithstanding almost every disadvantage under which a work of this nature can be undertaken, he has so thoroughly entered into his author's spirit, is so conversant in the topics discussed, and writes with such admirable precision, as well as liveliness and elegance, that but for the information conveyed in the title-page and preface, it would be difficult to imagine that the work did not contain the author's own statement of his principles.

So great being Mr Dumont's merits; so large indeed being his share in the cxccution of the work, it is only rendering him a just tribute, if we stop for a moment to dispute the title of Reducteur, which his modesty inclines him to assume. He much more nearly resembles an adept, delivering to the world the doctrines of the school of philosophy to which he belongs. The materials put into his hands were frequently extremely imperfect, although much more bulky than the work, in which he has rather embodied their spirit than disposed themselves. They often presented to him different essays on the same points, which he was to seize or collect, and to illustrate himself, or accompany with the author's illustrations, according to circumstances. In some chapters, he had nothing but a few marginal notes for his guidance. One whole book was formed cut of scattered fraginents, which had not only to be collected and arranged, but connected and extended. The important discussion on capital punishments was left unfinished. In treating such branches as these, it is plain that Mr Dumont had an office to perform nearly resembling that of the restorers of the ancient Geometry, who, from the precious relicks in Pappus--sometimes an enunciation without the analysis or construction-sometimes a proposition without demonstration-sometimes a few propositions prefatory to the lost investigations-frequently an obscure remark or hint, referring to the lost books, and darkly shadowing out their contents have, by their exquisite skill and taste, been enabled to give the modern world the most refined speculations of the ancient, in a state of perfection, probably soniewhat higher than they originally attained in the hands of their illustrious authors.

Mr Dumont was enabled to supply the blanks left in other parts of his materials, from some of the former publications of

*Sce especially Dr Simson's restorations of Appollonius's Loci Plani, and Euclid's Porisms. Sec too Professor Playfair's Inquiries,

in the Edin. Trans.

1913. Bentham's Theory of Punishments, by Dumont.

Mr Beutham; and in his selections from these, and his manner of incorporating them, so as to preserve the unity of the design, he has exhibited his accustomed skill. Although, however, in this, as in the performance of his task generally, he has been forced to take a range very different from that of ordinary editors-translating or commenting, abridging or filling up, according to the nature of the case-he reminds his reader, as he did upon the former occasion, that the details or execution alone rest upon him, and that, after all, it is Mr Bentham's work, and not his own, which he presents to the public as faithfully as circumstances permit. That Mr Bentham was satisfied with the fidelity of his last publication, he infers from the confidence again reposed in him; but he adds, that Mr Bentham has in nowise interfered with the execution of the present work, and has even refused to look at it during its progress. Retaining indeed the same opinions which he held when he originally prepared the materials, but pursued by the fastidiousness that made him suppress them, he could not have satisfied himself with the form in which he had disposed them; and had he touched them again, it must have been to compose them anew. Que M. Bentham (says his friend) trop difficile sur ses productions ne crut pas celle-ci digne des regards publics, c'est ce qui n'etonnera point ceux qui savent tout ce qu'il exige de lui-même, et les idées qu'il se ⚫ forme d'un ouvrage achevé.'

We could not, in justice to Mr Dumont, omit alluding to these particulars; for the labours of those who, with ample capacity for original speculation, devote themselves to expound the systems of others, rarely meet the applause so justly their due; and it is still more rare that such commentators share so largely in the merits of the original author. Before proceeding to the work itself, we have to mention, with real satisfaction, the notice contained in the preface, respecting the success of the former treatise. Notwithstanding all the disadvantages, under which it came out, and the subsequent convulsions of the Continent where it was chiefly destined to circulate from the language and the place of publication, three thousand copies have been required in no long period of time; the name of the author, too, having scarcely before been known out of England. That its principles have not been without effect, may safely be inferred from the repeated allusions made to it in the several official publications upon legislative codes, promulgated to the state in different parts of Europe.

The work before.us consists of two great parts or branches; the theory of penal legislation and the theory of remunerative legislation. In the first are delivered systematically all the prin

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ciples which ought to regulate the choice of different modes of punishment and the apportionment of punishments to crimes. In the second are exhibited the principles upon which the lawgiver ought to proceed when he holds out inducements either afone or attended with corresponding penalties, to influence the conduct of his subjects. The inquiry under both heads is accompanied with constant reference to the actual state of things in relation to the principles laid down or deduced; that is, the consonance of the practice of lawgivers, to the theory, or its departure from that theory. The work is eminently entitled to the appellation of original in each of its departments. The doctrine of punishments had rather been sketched than systematically unfolded, even by those of the few former writers on the subject who had professed to enter most largely into it. The doctrine of rewards had scarcely been treated at all, and never in a distinct and separate form. It is delightful to follow this investigation from the clearness and facility with which its steps succeed one another, and the copiousness with which every part of the outline is filled up. But the speculative pleasure derived from it as a theory, is soon disregarded in the midst of the practical questions which are constantly arising out of the applications of the general principles. We shall pursue the two branches of the inquiry in their order. But as they are capable of being handled separately, and each forms in itself a distinct whole, independent of the other, we purpose at present to confine our attention to the theory of punishments; which is discussed in five books.

1. The First Book explains the general principles of the system, and opens with definitions and classifications, the most essential only of which shall be here noticed. Punishment in its most general sense, is the infliction of some evil upon an individual, with the intention that he should suffer this evil, and with a reference to some act done or omitted. Punishment in its legal sense, is the infliction of some evil according to judicial forms, upon an individual convicted of some act * forbidden by law, and with the intention of preventing the recurrence of such acts. Punishments as well as crimes are divisible into four classes, as they affect the person, the property, the reputation or the condition of those upon whom they are inflicted. Those punishments which affect the person, or, as they are commonly called, corporal punishments, are subdivided into various species; they may be simply afflictive, or complexly so, or restrictive, or active, (e. g. compulsory labour), or capital. The other

* Our author has it quelque acte nuisible, defendu par la loi 'which is a tautology.

three classes are all privative, affecting the delinquent with loss or degradation. Hence another general classification of punishments, by dividing them into corporal and privative. †

It follows from the definition, that the object of all punishment is the prevention of the offence in future. Now, as it may either be repeated by the same delinquent, or by other persons in similar circumstances, and as the lawgiver has to provide against each of these events, he must direct the punishment with a view to both. It may tend to prevent the delinquent from repeating his offence, in three ways; by taking from him the physical power of committing it; by taking away the desire; or by deterring him. The other, and principal object of the infliction, that of restraining others, can only be accomplished, as far as the punishment is concerned, by the threat of similar infliction which it holds out. These objects, as they form the only just, motives, constitute also the only justification of punishments. 'If,' says our author, we were to regard the crime which has been committed as an insulated event that could not recur, 'the punishment would be wholly thrown away; it would be only adding one evil to another. But when we consider, that • a crime left unpunished would leave the way towards the same 'offence, open both to the former delinquent, and to all others under the influence of similar motives, we come to view the 'punishment inflicted upon the individual as a safeguard to all. • Punishment, however vile an instrument in itself, and however repugnant to generous sentiments, rises into a blessing of the highest order, when regarded not as an act of anger or resentment against a guilty or an unfortunate person who has ' yielded to hurtful propensities, but as a sacrifice indispensably necessary to the public safety.' Although the direct and primary object of punishment is prevention, the civil magistrate has another duty to perform after he has provided for that object; viz. to provide as far as possible for the reparation of the injury sustained through the crime committed. It is manifest that the consideration of this subject belongs to the plan of the present treatise only, in so far as punishments may be made subservient to the purposes of reparation. It is possible that some readers may at first view consider these principles as nearly self-evident,

+ Perhaps this language, if not the arrangement itself, does some little violence to common usage. Thus, imprisonment is commonly considered as a privation of liberty; but in the above arrangement it comes not under the privative class, but under the restrictive, which is a subdivision of the corporal. So the pillory (if such a disgrace to all criminal legislation may be mentioned on this occasion) is, according to the above arrangement, not a corporal, but either a priva tive or a mixed punishment.