Extenuations

Extenuations, by Bentham

Text of one of the sections, titled “Extenuations” in the “Specimen of a Penal Code”, edited from the French of Dumont, and the original MSS. and printed works of Bentham, of the “Essay on the Promulgation of Laws, and the Reasons Thereof; with Specimen of a Penal Code”, of the classical book “An Introduction to the Principles of Morals and Legislation”, by Jeremy Bentham:

When the delinquent has really received, or sincerely believes himself to have received, a provocation from the party injured, this may be a source of extenuation. That which constitutes the provocation is a wrong: this wrong may be of a legal or moral kind.

Explanations:

The sincere persuasion of even an imaginary wrong, furnishes some degree of extenuation. It is of no consequence whether the erroneous supposition in this case rest upon a point of fact or a point of law. It turns upon a point of fact, when you believe that you have received a certain damage from your adversary, and he has really not done it to you: it turns upon a point of law, when you believe that he has no right to do you a certain damage, and he really has the right to do it.

It is of no consequence to whom the wrong in question immediately refers: whether to the party himself provoked, or to any person particularly dear to him; or to the public in general, for the interests of the public ought to be dear to every one; or to the person himself who gave the provocation, for each individual should be dear to every man: consequently, if you think you see any one plunging into vice, and the vexation with which you resent his evil conduct lead you to strike him, it is a less crime than if you had struck him in the course of a quarrel arising out of your own interests.

The wrong done may be either moral or legal. A legal wrong is one which is punishable by the laws: a moral wrong may be any act, whether punishable by the laws or not, which being hurtful to the party injured, is liable to be punished by the censure of the world: for example, an act of violence, of perfidy, or of ingratitude.

General Observation:
The extenuation furnished by provocation, is greatest in proportion to the following circumstances: 1. The gravity of the wrong. 2. The recentness of its date. 3. The difficulty which the injured party might have in obtaining legal redress.

Explanations:
The gravity of the wrong, upon this occasion, ought not to be estimated simply according to the evil of such an offence to society in general, but with a view to its tendency particularly to excite resentment: consequently, a personal insult, or an act of defamation, constitutes a strongerprovocation than a theft.

The date of a provocation requires some particular remarks. At the same distance of time, a provocation may be more or less lively, according to its magnitude: that which weighs down the heart may be yet recent; whilst another, which is lighter in comparison, may be forgotten. However, as a boundary is requisite, a provocation ought not to be esteemed recent, if more than a month have elapsed between the time of its receipt, and the occurrence of the fact to which it is alleged to have given rise.

A provocation should be dated, not from the time when it occurred, but from the time when it came to the knowledge of the party injured; and even every circumstance adding much to the malignity of the action, and only becoming known after the other parts had been known, should be deemed a renewal of the provocation: thus, if after having learned that a man had beaten your son; — a month afterwards you should learn that your son had lost an arm in consequence of the blows; or that a man with arms had fallen upon your son, who was disarmed, and that he had struck him after he asked for quarter: if you should attack this man in consequence, and beat him, the provocation in this case ought to be deemed recent.

Thus a train of distinct provocations, which are all recent with respect one to another, and of which the last is recent with relation to the fact in question, ought all to be esteemed recent in relation to this fact. This succession is what properly constitutes the unity of the quarrel.

Second Extenuation

If a man, in defending his person or his property from attack, does more injury to his adversary than was necessary for its defence, the surplus is an injury; but an injury susceptible of excuse, in consequence of the provocation. This is even the most favourable case, since it is not only recent, but immediate.

In judging whether an attack could be repulsed with less evil to the aggressor, it is necessary to place oneself in the place of the attacked, and to recollect, that in the agitation of his mind he could not coolly consider all his means of defence, and choose precisely that which should accomplish his purpose with the least possible evil to his adversary. There is a great difference in this respect between the quiet of the closet and the bustle of action.

Suppose that a man suddenly assail you with a stick, and that there is at your door a stick and a bar of iron: you seize the bar of iron and strike the man a dangerous blow, or kill him. This ought to be deemed justifiable self-defence, unless it could be proved that you had deliberately taken the bar of iron in preference to the stick, with the intention of killing him, or wounding him more than was necessary for your security.