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“A Hatchet for Paley’s Net”: Bentham on capital punishment and judicial discretion

Published online by Cambridge University Press:  09 June 2015

James E. Crimmins
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Extract

Jeremy Bentham (1748–1832) was a life-long opponent of capital punishment. All told he left us three essays on the subject, dating from 1775,1809 and 1830, only the first and third of which have been published and subjected to critical analysis. In this article I am concerned with the unpublished manuscripts of 1809. Hitherto ignored by students of utilitarian legal philosophy, these papers contain what is perhaps Bentham’s most trenchant criticisms not only of capital punishment per se but also of the extensive discretionary powers which its administration made available to England’s magistrates. With legislators making increasing use of the penalty of death in the second half of the eighteenth century, magistrates felt compelled to grant reprieves to convicted capital offenders and to substitute lesser penalties as a matter of common practice. By the beginning of the nineteenth century, however, this manner of dispensing justice was an issue of some moment to law reformers of all persuasions, including the radical Bentham.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 1 , Issue 1 , January 1988 , pp. 63 - 73
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1988

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References

I would like to express my appreciation to Professor Bruce Welling of the University of Western Ontario’s Faculty of Law for his many helpful comments on an earlier draft of this essay.

1. The essays of 1775 and 1830 are published as parts of the “Principles of Penal Law” The Works of Jeremy Bentham I at 441 –50, 525-32 Google ScholarPubMedHenceforth Works. For a comprehensive analysis of the published essays see Bedau, Hugo Adam “ Bentham’s Utilitarian Critique of the Death Penalty ” 1983),74 The Jour, of Crim. Law Ȗ Criminology 74. 1033–65.CrossRefGoogle Scholar

2. See Postema, G.J. Bentham and the Common Law Tradition (1986)Google ScholarBedau judged the discussion of the Crown’s prerogative to “pardon”in the essay of 1830 to be a “peculiar addition” to Bentham’s argument and was at a loss to explain why he devoted so much time to it, arguing with a certain amount of vexation that “.. .Bentham’s preoccupation with the whole theme is bound to strike even the sympathetic observer today as tedious, eccentric, and unmotivated”, Bedau, supra, note 1 at 1058, 1035. Bentham’s brief discussion of pardons in the 1830 essay is at Works I at 529-30.

3. Bentham’s attitude towards Paley was not always so critical. Indeed, there were occasions when he found it expedient to claim “parson Paley” as an ally in the utilitarian cause. See esp. Supply Without Burden (1795), Jeremy Bentham’s Economic Writings (1952-54) I at 336; and A Table of the Springs of Action (1817), Deonfology (1983) at 52.

4. Blackstone, William 35 Commentaries on the Laws of England (1765-69) IV at 18.Google Scholar

5. Works X at 356. Leon Radzinowicz argues that the rigorous treatment of forgery in English law was largely due to George Ill's personal opinion of this offence. A History of English Criminal Law and its Administration from 1750 (1948) I at 122.

6. Supra, note 4 Chs. 3-4.

7. Transportation was introduced as an alternative punishment at the discretion of the court by the Habeas Corpus Act; 1679, 31 Charles II c. 2.

8a. The essay can be found in the Bentham Mss. at University College London, Box 107/fols. 193-277. Henceforth references to these mss. will be given in brackets in the text, thus (107/193-277). Bentham began the work on the 29 January and completed most of it by the 31 January 1809 (107/193-242, 258-259); he then added a few pages a week later (107/222, 243-256, 260-261, 265-66) and, true to his habit of leaving one project to pursue another, did not return to the subject again until the 19-20 July 1810, when material originally intended for a book on “Fallacies” was added to the rest of the manuscripts (107/267-77). The work was finally completed by the transfer of several more sheets of manuscript, this time from a project headed “Evidl ence I Prospl ectus ] View”, dated 28 January 1808 (107/262-64), and the addition of a few lines on the 26 February 1811 (107/213).

8b. For an explanation of this form of reference see footnote 8a.

9. Perhaps Bentham’s hand was stayed by the publication of James Mill’s essay “On the Penal Law of England, with respect to Capital Punishments, and as connected with the Transportation and Penitentiary Systems”, in the first number of The Philanthropist (1811) at 66-67, 143-56. In some respects Mill's is the better work, but it also follows very closely Bentham’s own analysis of punishment in the “Principles of Penal Law”, including the essay on capital punishment dating from 1775, and too much duplication on the same subject may have convinced Bentham to set the work on Paley aside. Mill briefly considered “Paley’s Net” in a section of his unpublished “Common Place Books” (London Library) II 36 (ca. 1811). I am indebted to Professor R.A. Fenn of the University of Toronto for drawing my attention to these items of Milliana.

10. Paley, William The Principles of Moral and Political Philosophy (1785), Google ScholarThe Complete Works of William Paley (1825) II at 374. Henceforth references to this work will be given in brackets in the text, thus (Princ. 374).

11. Supra, note 5 at 506. A.V. Dicey comments that despite Paley’s keen and enlightened interest in legal problems, he either did not grasp the need for, or did not care to pursue the idea of, a systematic revision of English laws. Paley’s philosophy “is, in so far as he applied it to law, an ingenious defence of things as they stood in 1786 (sic). He is neither an innovator nor a reformer, but like Blackstone an apologist”. Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (1930) at 143.

12. Regarding libel law Paley had written: “For, this is the alternative: either the law must determine beforehand and with precision the offenses which it punishes; or it must be left to the discretion of the magistrate, . . . which is in effect, leaving to the magistrate to punish or not to punish, at his pleasure, the individual who is brought before him; which is just so much tyranny” Princ. at 17.

13. Works I at 450. Beccaria favoured a life sentence of servitude in place of the death penalty because it “has in it what suffices to deter any determined spirit”. On Crimes and Punishments (1963) at 48. The influence of Beccaria on Bentham is well-documented, but Beccaria combined appeals for the abolition of capital punishment based on utilitarian criteria with those grounded in natural rights contractarianism and basic humanitarianism, neither of which were considerations for Bentham. 17.

14. L.W. Sumner's explanation of the “ paradox ” in Bentham’s argument — that though death appears to be the more dreadful punishment, life imprisonment is a greater deterrent — is not satisfactory. His explanation relies on the fact that Bentham believed that to the lower orders the terrors of an execution were only apparent, and actually were minimal in terms of pain when compared with the hardships of lengthy confinement. “Mill and the Death Penalty: Some Addenda”. The Mill News Letter (1978) XIII No. 2 at 17-18. But, even allowing for this distinction between the psychological impact of different penalties on different levels of society, the deterrence value of a punishment does not depend on the actual misery experienced so much as what the potential criminal believes or expects to be the suffering involved.

15. A similar passage appears in the 1830 essay suggesting thatthe manuscripts on Paley were used in the writing of the later work. In the latter John Howard, the English penal reformer, is cited as the source for the information about Tuscany under Leopold. Works I at 531.

16. Supra, note 5 at 293

17. The “anonymous” manner in which the Crown’s mercy was often dispensed and the grounds upon which magistrates recommended pardons is discussed by Radzinowicz, ibid, at 107–22.

18. According to Radzinowicz the operation of capital statutes was restricted by the cumulative influence of three factors: “(1) the frequent commutation of death sentences by the Crown; (2) the understanding of the value of stolen property by the juries; (3) the merciful interpretation of capital statutes by the judges”. Ibid, at 96–97,

19. Colquhoun, Patrick A Treatise on the Police of the Metropolis (1797) at 394. Google Scholar

20. Supranote 5 at 147.

21. Ibidat 152. Radzinowicz does not say how many of those saved from execution were unconditionally pardoned or how many served lesser sentences.

22. Abercrombie, James “Motion Respecting Convicts discharged upon entering the Army or Navy” Parliamentary Debates (1812) 21, cols. 1253-58, cited by Radzinowicz, supranote 5 at 131Google Scholar

23. For Romilly’s efforts see Cooper, David D. The Lesson of the Scaffold. The Public Execution Controversy in Victorian England (1974) at 31–36; and Phillipson, Coleman Three Criminal Law Reformers. Beccaria, Bentham, Romilly (1923) at 262–.69.Google Scholar

24. Romilly, Samuel Observations on the Criminal Law of England as it relates to Capital Punishments, and on the mode in which it is administered (1810), Speeches of Sir Samuel Romillyin the House of Commons I at 135.Google Scholar

25. Ibid,at 136.

26. For a discussion of the work of the committee and Mackintosh’s part in it see supra, note 5 at 528–61.

27. Gibbon, Edward Wakefield, Facts relating to the Punishment of Death in the Metropolis (1832) at 177.Google Scholar

28. Cited by Basil Montague, The Opinions of Different Authors upon the Punishment of Death (1809) III at 266.

29. For the “London Jurors’ Petition” see supra, note 5 at 595-96, 731-32.

30. The Punishment of Death. A Selection of Articles from the Morning Herald with Notes (1836-37) I at 167.

31. It was the heightened public interest in the use of the Crown’s prerogative to pardon which almost certainly moved Bentham to write his final essay “On Death Punishment” in 1830. The essayis addressed by Bentham “to hisFellow-Citizens of France” and there exist at University College London some related manuscripts (23/77-85), dated 26 October to 18 November 1830, which lend credence to the notion that the work was begun in response to the public outcry over the pardons given to the ministers responsible for the insurrection in Paris of that year. The English papers were full of thepros and cons of pardoning the French ministers, and there can be little doubt that Bentham's essay was intended to place the debate within the wider context of the failings of the Englishjudicial system associated with the Royal prerogative. For extracts from the Morning Chronicle and Morning Herald reports of the events in France see The Punishment of Death I at 65-71.

32. See esp. Andrew Ashworth, “Techniques of Guidance onSentencing”, The Crim. Law Rev. [1984] 519-30. In a New York Times interview (December1, 1985, at 9, sec. 1, col. 1) Ashworth called for the creation of a Sentencing Council, to bechaired by the Lord Chief Justice, to lay down guidelines. Such a council, he suggested, shouldinvolve scholars, probation officers and prison officials as well as magistrates. He attributed the dearth of guidelines to “the English habit of muddling along without being explicit” and contended that “the sentencing process is a disgrace to the common lawtradition”.