d.

NOTES:

[396] _Works_ ('Morals and Legislation'), i. 46.

[397] _Ibid._ i. 48.

[398] _Works_ ('Morals and Legislation'), i. 56.

[399] _Ibid._ i. 56.

[400] _Works_ ('Morals and Legislation'), i. 60.

[401] _Ibid._ i. 62.

[402] _Ibid._ i. 65.

[403] These are the two classes of 'springs of action' omitted in the
_Table_.

[404] _Works_ ('Morals and Legislation'), i. 68.

[405] Here Bentham lays down the rule that punishment should rise with
the strength of the temptation, a theory which leads to some curious
casuistical problems. He does not fully discuss, and I cannot here
consider, them. I will only note that it may conceivably be necessary to
increase the severity of punishment, instead of removing the temptation
or strengthening the preventive action. If so, the law becomes immoral
in the sense of punishing more severely as the crime has more moral
excuse. This was often true of the old criminal law, which punished
offences cruelly because it had no effective system of police. Bentham
would of course have agreed that the principle in this case was a bad
one.

IV. CRIMINAL LAW

We have now, after a long analysis, reached the point at which the
principles can be applied to penal law. The legislator has to discourage
certain classes of conduct by annexing 'tutelary motives.' The classes
to be suppressed are of course those which diminish happiness. Pursuing
the same method, and applying results already reached, we must in the
first place consider how the 'mischief of an act' is to be
measured.[406] Acts are mischievous as their 'consequences' are
mischievous; and the consequences may be 'primary' or 'secondary.'
Robbery causes pain to the loser of the money. That is a primary evil.
It alarms the holders of money; it suggests the facility of robbery to
others; and it weakens the 'tutelary motive' of respect for property.
These are secondary evils. The 'secondary' evil may be at times the most
important. The non-payment of a tax may do no appreciable harm in a
particular case. But its secondary effects in injuring the whole
political fabric may be disastrous and fruitful beyond calculation.
Bentham proceeds to show carefully how the 'intentions' and 'motives' of
the evildoer are of the greatest importance, especially in determining
these secondary consequences, and must therefore be taken into account
by the legislator. A homicide may cause the same primary evil, whether
accidental or malignant