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Penal Code

Penal Code

Table of Contents of a Proposed Penal Code, by Bentham

Text of one of the parts, titled “Table of Contents, as shown by Titles of Chapters and Sections” 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:

Constructed is this Table, in part from actual observation of the contents of the several Chapters and Sections; partly from the anticipation of them. It cannot be considered as completed, till expression has been given to the whole of the Code in the very words of it, or, as the phrase is — in terminis.

Note here, that the so-called unwritten law has no assignable words belonging to it. This is the characteristic — the distinguishing property — the differential character — of it, by which this fictitious stands distinguished from the only really existing sort of law, namely, the so called written law — the statute law.

By the matter of this Table, the whole field of penal legislation has been endeavoured, and is supposed, to be covered. To a student, an instructive sort of exercise would be — the finding, or endeavouring to find a species of maleficent act which is not comprised in it. This supposition of all comprehensiveness, of course, falls more or less short of being correct. But, in this line, as in every other line of action, which has for its object or end in view the maximum of happiness, the impossibility of attaining the summit, affords no reason against making continual approaches to it, on each occasion, as near as possible.

Condemners of Codification! think of this, and exhibit apposite reasons against it, if you can.

Offences affecting Condition in Life; Offences affecting the Revenue; Offences affecting Trade. Of the aggregate of the several portions of matter belonging to these several heads, will be composed the principal portion of the aggregate of the matter of the assemblage, or say collection of Particular Codes: herein may be seen the relation between these same Particular Codes on the one part, and this General Code, on the other part.

The several acts, which, in the several enactments of which the Penal Code is composed, are taken for the subject matter of its prohibition, may be considered as so many acts of co-delinquency with relation to the so widely comprehensive genera of offence, designated by the herein-above-mentioned denominations; of co-delinquency, namely, by contributing, in some way or other, to the production of an evil effect of the sort of those which, by the denomination in question, are designated.

Corresponding enactments, suppose —“Do not anything from which detriment may ensue to the Revenue;” “Do not anything from which detriment may ensue to the Trade of the country.”

To help conception, take the observation following. In a commonwealth, erroneous enactment, if performed in relation to either of these topics, may be considered as an act of delinquency on the part of the Legislature: of delinquency, for remedy to which, the members therein concurring, will, collectively or severally, be liable to suffer dislocation, at the hands and by the votes of the members of the Constitutive authority.

  • PART I. — Offences collectively considered.
    • CHAPTER I.Subject matters of consideration: including those which give denomination to the several succeeding chapters.
    • CHAPTER II.Good and evil from human agency: — their progress in the community; their three stages: whence good and evil of the 1st, 2d, and 3d orders respectively.
    • CHAPTER III.Ends in view: — Axioms of mental pathology (Correspondent are these to the several acts of maleficence, to which, in consideration of such their quality, it is thought fit to assign the character of acts of delinquency and the denomination of offences, with correspondent treatment, for the purpose of remedy, as per Chap. XVI. These axioms are enunciative of the sufferance, or say pain respectively produced by those same offences; and of the preponderancy of this pain, over any pleasure, producible by those same acts to the agent.)Rules; principles; correspondency between these several subject matters.
    • CHAPTER IV.Division of Offences (See Part II. Offences severally considered) i. e. of acts of maleficence, which, in consideration of such their quality, are hereby proposed to be by appropriate inhibition converted into offences.
    • CHAPTER V.Offences, positive and negative.
    • CHAPTER VI.Offences, transitory and continuous: wherein of quarrels, and the acts of maleficence thereby producible.
    • CHAPTER VII.States of the Mind with reference to maleficence, including —
      • i. Evil consciousness,
      • ii. Heedlessness, and
      • iii. Blamelessness.
    • CHAPTER VIII.Instruments of Maleficence: which, in so far as inhibited, receive the name of delinquency:— including —
      • i. Illegal coercion,
      • ii. Illegal remuneration,
      • iii. Illegal deception:— In all their several shapes.
    • CHAPTER IX.Offences, inchoate and consummate, viz.:—
      • i. Designs.
      • ii. Preparations.
      • iii. Attempts.
      • iv. Consummations; or say, Perpetrations.
    • CHAPTER X.Co-Offenders, and Co-Delinquency, including the various modes of co-operation in the several Offences, viz.:—
      • i. Antecedential.
      • ii. Contemporaneous.
      • iii. Subsequential; with reference to the production of the maleficent effect.
    • CHAPTER XI.Justifications.
    • CHAPTER XII.Extenuations.
    • CHAPTER XIII.Aggravations.
    • CHAPTER XIV.Offences affecting Trust.
    • CHAPTER XV.Exemptions(So many distinguishable sorts of burthens as are imposed — whatsoever be the purpose — whether satisfaction or punishment — so many are the correspondent exemptions possible), viz.:— from punishment, and other burthens produced by the application of appropriate remedies.
    • CHAPTER XVI.Remedies: viz. to the disorders producible by the several Offences. These remedies are,
      • i. Originally Preventive.
      • ii. Suppressive.
      • iii. Satisfactive.
      • iv. Punitive; and thereby subsequentially Preventive.
    • Included in the Satisfactive, are —
      • 1. Compensative.
      • 2. Restitutive, viz. either identical, or equivalent.
      • 3. Attestative.
      • 4. Expurgative, or say, vindicative.
      • 5. Vindictive.
    • CHAPTER XVII.Persons subject to this Code.

    • PART II

    In this Part is contained the remainder of the Work. It is composed of what relates to the several offences, in so many chapters: in each chapter, so much being given of the general matter as is applicable to the offence which is the subject matter of that same chapter. Under the heads constituted by the denominations of the several genera of supposed maleficent acts, which, on account of their being so, are spoken of as acts of delinquency, and constituted offences, — the several arrangements, and enactments thereto belonging, are grounded, all of them, on considerations derived from the contemplation of the more general propositions, contained in the several chapters of Part I.; reference to which will all along be given; as also, per contra, in Part I, will reference be made to the several occasions, on which, in Part II., application is made of them respectively.

     — Offences severally(In the work will be seen a definition of each genus of offence, as designated by the name by which it is designated here; and, where the genus is divided into species, a definition of each species)considered.

    • CLASS I.Private Offences(In the method here pursued, commencement is made with those offences the conception of which is more simple and clear; and from these it proceeds on with those of which the conception is more and more complex and obscure) [1]
    • CHAPTER I.Offences affecting the Person.
      • Sect. 1. Wrongful (Exceptions excepted, in the case of every one of the several sorts of acts ranked in this Table under the denomination of Offences — to the name of the act this word wrongful (it will be observed) stands prefixed) [2] corporal vexation — simple, or say, curable (In the cases, in which, from the magnitude of the extent over which the suffering spreads, the offence receives the quality and denomination of semi-public, — it receives thereby a complexion quite different from the more ordinary and natural one: and, of the appropriate remedy, the nature becomes correspondingly different. In the case of an offence levelled at the person of an assignable individual, the motive is most commonly antipathy, or say ill-will: in the case in which the persons affected are so numerous that the offence takes a semi-public character, seldom has ill-will anything to do with it; the motive is a self-regarding one:— namely, the love of wealth, or say pecuniary desire. As to the means, by the conjunction of which with the motive, the temptation is produced — where antipathy is the motive, persons of all classes stand alike exposed to it: in the case where pecuniary desire is the motive, it is by the matter of wealth in considerable quantities that the means — the instrument by which the evil effect is produced — is most commonly afforded. Of the thus widespreading annoyance, the most commonly exemplified efficient cause is — either some manufacturing course of operations carried on in a certain edifice or spot of ground, or some particular quality in the situation of the edifice or spot of ground itself.)
      • 2. Wrongful morbification (These might be considered as constituting nothing more than so many aggravations of the one offence first mentioned — namely, simple corporal vexation: in which case they would fall under the head of that offence, constituting so many aggravations of it, instead of constituting, as here, so many genera of offences, and as such, occupying so many places in the list of those same genera)
      • 3. Wrongful disfigurement.
      • 4. Wrongful disablement.
      • 5. Wrongful mutilation.
      • 6. Wrongful homicide.
      • 7. Wrongful mental vexation — simple.
      • 8. Wrongful menacement — simple, or say, unconditional.
      • 9. Wrongful restriction, or say, restraint, at large.
      • 10. Wrongful compulsion, or say, constraint, at large.
      • 11. Wrongful imprisonment.
      • 12. Wrongful confinement.
      • 13. Wrongful banishment.
      • 14. Wrongful enslavement.
      • 15. Manstealing.
    • CHAPTER II.Offences affecting Title to Property — tangible or untangible — corporeal or incorporeal.
      • Sect. 1. Wrongful non-collation, of title to the property.
      • 2. Wrongful ablation of, &c.
      • 3. Usurpation of, &c.
      • 4. Wrongful transference of, &c.
      • 5. Wrongful interception of, &c.
      • 6. Wrongful depreciation, of title.
    • CHAPTER III.Offences affecting Use of Property, but not Title, otherwise than so far as conferred by possession.
      • Sect. 1. Wrongful detention, or say, detinue, or detainer.
      • 2. Wrongful asportation.
      • 3. Wrongful destruction.
      • 4. Wrongful deterioration.
      • 5. Wrongful disturbance of occupation.
      • 6. Wrongful interception of occupation.
      • 7. Wrongful occupation.
      • 8. Theft; or say, wrongful asportation, without supposition of title.
      • 9. Embezzlement, or say, wrongful detention, without supposition of title.
      • 10. Fraudulent obtainment.
      • 11. Extortion.
      • 12. Peculation.
      • 13. Wrongful damnification, or say, production of loss.
      • 14. Wrongful interception of profit.
    • CHAPTER IV.Offences affecting Title to Power, considered as a benefit.
      • Sect. 1. Wrongful non-collation.
      • 2. Wrongful ablation.
      • 3. Usurpation.
      • 4. Wrongful transference.
      • 5. Wrongful interception.
    • CHAPTER V.Offences affecting the Exercise of Power.
      • Sect. 1. Wrongful disobedience to ordinances or mandates.
      • 2. Wrongful resistance to the exercise of the power.
      • 3. Wrongful disturbance of the exercise of the power.
      • 4. Wrongful exercise, or say, mis-exercise, of the power.
    • CHAPTER VI.Offences affecting Reputation.
      • Sect. 1. Wrongful defamation.
      • 2. Wrongful vituperation.
      • 3. Insultive vituperation.
      • 4. Usurpation of reputation.
      • 5. Wrongful transference of reputation.
      • 6. Wrongful interception of reputation.
    • CHAPTER VII.Offences affecting Person and Property: Title, not otherwise than in so far as conferred by possession.
      • Sect. 1. Wrongful destruction forcible.
      • 2. Wrongful deterioration forcible.
      • 3. Wrongful detention forcible.
      • 4. Wrongful asportation forcible.
      • 5. Wrongful profit-interception forcible.
      • 6. Wrongful occupation forcible.
      • 7. Simple robbery.
      • 8. Highway robbery.
      • 9. Day habitation robbery.
      • 10. Night habitation robbery.
      • 11. Rioting.
    • CHAPTER VIII.Offences affecting Person and Reputation.
      • Sect. 1. Wrongful insulting, or say, ignominious corporal vexation.
      • 2. Wrongful insulting menacement, or say, ignominious mention.
      • 3. Challenging to fight.
      • 4. Sexual seduction, allurative or say, enticitive.
      • 5. Sexual seduction compulsory.
      • 6. Rape.
      • 7. Vexation by lascivious contrectation.
    • CHAPTER IX.Offences affecting Property and Reputation.
      • Sect. 1. Usurpation of reputation of inventorship:— authorship included.
      • 2. Wrongful ascription of reputation of inventorship.
      • 3. Usurpation of reputation of fabricatorship.
      • 4. Wrongful ascription of reputation of fabricatorship.
      • 5. Usurpation of reputation of vendorship.
      • 6. Wrongful ascription of reputation of vendorship.
    • CHAPTER X.Offences affecting exclusive Title to Property in—
      • 1. Inventorship (In the case of offences affecting property in general, the subject matters of the acts prohibited are individual things: in the case of offences affecting reputation of, and exclusive title to, inventorship, they are species of things)
      • 2. Fabricatorship.
      • 3. Vendorship. These are the same as those affecting title to property: as per Ch. ii., which see: the exclusiveness having for its result a species of property.
    • CHAPTER XI.Offences respecting Onerous Obligation.
      • Sect. 1. Wrongful oneration.
      • 2. Wrongful self-exoneration.
      • 3. Wrongful exoneration.
      • 4. Wrongful trans-exoneration.
      • 5. Wrongful non-susception.
    • CHAPTER XII.Offences affecting Trust. See Part 1. Offences collectively, Ch. xiv. Trust is Power, charged with onerous obligation, giving direction to the use made of it.
    • CHAPTER XIII.Offences affecting Title to Exemption, viz. from Onerous Obligation. See Offences affecting Title to Power, Ch. iv.
    • CHAPTER XIV.Offences affecting Title to Conditions in Life(These are — 1. Domestic — 2. Profit-seeking — 3. Power-conferring — 4. Rank or Dignity-conferring;Domestic Conditions are — 1. Husbandship — 2. Wifeship — 3. Fathership — 4. Mothership — 5. Sonship — 6. Daughtership — 7. Guardianship — 8. Wardship — 9. Relationship)
      • i.Considered as beneficial.
        • Sect. 1. Wrongful non-collation.
        • 2. Wrongful ablation.
        • 3. Usurpation.
        • 4. Wrongful transference.
        • 5. Wrongful interception.
      • ii.Considered as burthensome.
        • Sect. 6. i. Wrongful imposition.
        • 7. ii. Wrongful exoneration.
        • 8. iii. Wrongful non-susception.
        • 9. iv. Wrongful self-exoneration.
        • 10. v. Wrongful transference.
    • CHAPTER XV.Offences affecting enjoyment from Condition in Life.
      • Sect. 1. Wrongful detention of child, ward, servant, wife.
      • 2. Wrongful asportation, of child, ward, servant, wife.
      • 3. Wrongful disturbance, of occupation as to child, ward, servant, wife.
      • 4. Wrongful occupation, of child, ward, servant, wife.
      • 5. Wrongful disobedience, by child, ward, servant, wife.
      • 6. Wrongful desertion, of child, ward, servant, wife (Correspondent wrong will commonly in this case have been done to child, ward, servant, wife — by interception of the services they would otherwise have respectively received from their respective correlatives)
      • 7. Elopement.
      • 8. Person stealing (Species are — 1. Child (from father) stealing — 2. Ward-stealing — 3. Wife-stealing — 4. Stealing for enslavement)
    • CHAPTER XVI.Offences affecting Title, to fractional, and other, miscellaneous rights; to wit, to services in miscellaneous shapes; those rendered due by contract, included.
      • Sect. 1 to 5. Non-collation, &c., as per Ch. xiv.
    • CHAPTER XVII.Offences affecting the enjoyment of Miscellaneous Rights.
      • Sect. 1. Wrongful non-reddition of the correspondent appropriate services.
      • 2. Obstruction to reddition of correspondent services. See Ch. xvi.
    • CLASS II.Semi-Public Offences.
      • 1.A Private Offence is converted into a Semi-PublicOffence of the same denomination by the numerousness,coupled with the individual unassignableness of the persons affected by the offence.
      • 2. So, into a Public Offence, by the condition in life, or say, situation of a party wronged: his situation being that of a public functionary.
      • 3. Offences affecting person and property, are, by the extent of the evil, converted into Semi-Public Offences, giving existence or increase to calamity(here it is to persons in small numbers, and those assignable, or to their property, or to both, that the mischief thus applies, it is styled a casualty; where to persons in large numbers, assignable or unassignable, it is styled a calamity. — Calamities, or their efficient causes, are — 1. Collapsion — 2. Inundation — 3. Draught — 4. Storm — 5. Shipwreck — 6. Explosion — 7. Earthquake — 8. Combustion — 9. Unwholesome air — 10. Pestilence — 11. Contagion — 12, Famine — 13. Destruction by insects or wild beasts. — See, in Chap. VII, Section 11, Rioting. See also Constitutional Code, Book II. Ch. xi. Ministers severally, Section 5, Preventive Service Minister, and Section 10, Health Minister.)
    • CLASS III.Public Offences.
    • CHAPTER XVIII.Offences affecting the exercise of Sovereign Power.
      • Sect. 1. Rebellion offensive.
      • 2. Rebellion defensive.
      • 3. Treason, or say, Foreign-hostility-procuring or abetting.
      • 4. Foreign-hostility-provoking.
      • ☞ For the other offences, see the several Chapters under the head of Private Offences.
    • CHAPTER XIX.Offences affecting Justice, or say, the Judiciary power.
      • ☞ For offences affecting the Title, see Ch. ii. Specific modifications and denominations will be determined by the language employed in the Constitutional Code, Ch. xii. Judiciary collectively, and the sixteen next ensuing chapters.
    • CHAPTER XX.Offences affecting the Defensive Force.
      • ☞ For these, see the corresponding Sections in the Constitutional Code, Ch. x. Defensive Force.
    • CHAPTER XXI.Offences affecting the Revenue.
      • Sect. 1. Contrabandism, or say wrongful non-reddition or due pecuniary service.
    • CHAPTER XXII.Offences affecting Trade.
      • Sect. 1. Miscommercialism, or say, Mistrading.
    • CHAPTER XXIII.Offences affecting Foreign States.
      • Sect. 1. Offences affecting foreigners individually.
      • 2. Offences affecting foreigners collectively, or say, foreign governments.

 

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Notes

1. On this occasion, why (it may be asked) does no such class appear as that of self-regarding offences? especially as in the author’s former works, this class makes its appearance along with the others.

Answer. —

1. Needless, with relation to the present purpose, would have been any such additional matter. From the names of the several acts, which correspond to them in the list here given of extra-regarding offences, the names of the several self-regarding offences may, without difficulty, be inferred.

2. Burthensome would the addition have been, in proportion to the space occupied by it.

3. Discussion occupying additional space, would have been necessitated by it.

4. To the practical purpose of taking the acts in question for subject-matter of prohibition, backed by appropriate punishment — no more than a part of the whole list of extra-regarding offences, would have furnished corresponding articles to the list of self-regarding offences.

5. Of these articles scarcely would there have been any others than those affecting property, and those affecting condition in life: in the first case, prodigality; in the other case, ill-assorted marriage, and improvidently contracted engagement of servitude: and in neither case would any demand for punishment have place.

6. So much for the offences themselves, by which disorders in the body politic are produced. Now as to the corresponding remedies. In relation to maleficent acts of this class, needless is — absurdly employed would be — the punitive: plainly inapplicable the satisfactive: which see, Part I. Chap. XVI.

7. In the case of prodigality, the sole remedy applicable with advantage is the suppressive. Even in this case, whether with advantage or not, depends upon the system of procedure.

8. Under the existing system, the remedy would be but an exacerbation of the disease: expenditure going on, but employed in the purchase of pain at the hands of lawyers, instead of pleasure at the hands of all other sorts of dealers.

9. Under the proposed system, with little or no expense, the diarrhœa might be stopt at any time. The case of non-age excepted, if, on the part of the judicial authority, interference in any shape is in this case justifiable, it is more on account of the interest of the family connexion of the prodigal, than on the account of the prodigal himself: and, in this case, no otherwise than in so far as by ties, legal or moral, in the event of his falling into indigence, they would find themselves bound for his maintenance.

10. Common to all self-regarding offences, is this highly material circumstance and quality:— by no offence of this description is evil of the second order — danger or alarm in any shape to other persons at large — ever produced. Nor yet, in the opinion of him who, generally speaking, is the best qualified judge, any preponderant and nett quantity of evil, even of the first order. At the same time, from evil, done to the offender himself, though by himself, results commonly (it must be acknowledged) a derivative evil to other individuals: to wit, to those connected with him by the tie of interest — of the one sort or the other — self-regarding or sympathetic, or both. On this ground, therefore — principally, if not exclusively — will be found to stand, any reason, by which the legislature can be called upon to make, or be justified in making, any arrangements, the effect of which would be — to produce in a Table of this sort, a demand for the insertion of any such class as that composed of self-regarding private offences.

2. The case is — that, on the present occasion, an addition to this effect to the denomination, and thereby a correspondent limitation applied to the idea, could not (it will be seen) be refused. The reason is — that, of all these several instances, no one is there in which, to the act in question, as designated by its name in the Table, it may not happen to be made lawful: made lawful — that is to say, on the consideration that, in the instance in question, whatever be the evil produced by the maleficent act, it is balanced or outweighed by some equivalent, or more than equivalent, good: made lawful — namely, by the establishment of some power or right — private, semi-public or public, as the case may be. As to the exceptions, — these are constituted by the several denominations, in the signification of which an assertion of the unlawfulness of the act in question is involved. Examples are: 1. Usurpation. 2. Seduction. 3. Rape. 4. Theft. 5. Embezzlement. 6. Peculation. 7. Robbery. 8. Rioting. 9. Rebellion. 10. Treason. 11. Contrabandism. 12. Mistrading. 13. International maleficence.

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