Philip Schofield, Catherine Pease-Watkin, and Michael Quinn (eds), The Collected Works of Jeremy Bentham: Of Sexual Irregularities, and Other Writings On Sexual Morality

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pg 125II. Contents of the Work, intituled Not Paul, but Jesus

Part I.Paul's claim to a commission from Jesus examined

☛ Contents not here inserted.1

pg 126Part II.Asceticism inculcated by Paul—in repugnancy to good Morals

Ch. 1. Cause—Occasion—Apologetica.

Ch. 2. Principle of Asceticism, what:—asceticism by active infliction, asceticism by forbearance:—asceticism by forbearance, the principle by which condemnation is passed on pleasure, in whatever shape, on any ground other than that of its being followed by pain more than equivalent.—Repugnancy of this principle to the only genuine, consistent, and defensible foundation of good morals—the principle of general utility, termed for shortness the principle of utility: by which, in the instance of every species of act, the approbation or disapprobation proper to be bestowed upon it is considered as depending upon, and measured by, its effects on the universal interest; i.e. on human happiness considered in the aggregate and as composed of individual pleasures, and exemptions from individual pains.

For this, reference to two works of Bentham: viz. 1. Introduction to the principles of Morals and Legislation, 4to London 1789;1 2. Traités de Législation Civile et Pénale, 8vo 3 Tomes, Paris 1802; edited by Dumont.2 See also his Table of the Springs of Action &c. 8vo London 1817: including Pleasures and Pains.3

Ch. 3. Subject of the present enquiry, the pleasures of sense. Pains and Pleasures, Elements of their value:—These elements are the same for all: viz. I. in the case of each pleasure or pain taken by itself, 1. intensity; 2. duration (these two compose magnitude); 3. certainty; 4. propinquity: II.—in relation to other pleasures and pains, considered as capable of resulting from it to the same person, 5. purity, as to sensations of the opposite cast; 6. fecundity, as to do of the same do: III.—in relation to the number of the persons considered as participating in it, 7. Extent, as measured by the number of such persons.—For all this, reference to Bentham, as above.

Ch. 4. Physical division of the subject. {☛ Object and use of this division, shewing the absence of distinction in respect of noxiousness, between those modes of sensual gratification, on pg 127which condemnation is generally passed by law and public opinion, and those on which no such condemnation at all is passed, or none but what is much less severe. The use is accordingly—to pave the way for the Moral division of the subject: as to which, see Contents of the next Chapter.}

I. Division of the sorts of acts, whereby the senses are put to use or affected, into such, in the instance of which the sense is but the inlet to the pleasure, or the pain, or the chief part of it, and such, where the sense is the seat as well as the inlet. To the former class belong—1. the act of seeing; sense, the sight; 2. the act of hearing; sense, the hearing. To the other class belong—3. the act of eating; sense, the taste; 4. the act of drinking; sense, again the taste; 5. the act of smelling; sense, the smell; 6. the sexual act, or act of sexuality; sense, the sexual, sometimes called the sixth sense.1 To the class in which the sense is the seat of the pleasure will the appellation of sensual acts, or acts of sensuality, be generally understood to be confined.

II. Division of acts of sensuality, into acts, of which the most prominent effect is the production of positive pleasure, and those of which the most prominent effect is production of mere exemption from positive pain.—Necessary indistinctness of these divisions. The latter class shares not in equal degree, if at all, in any condemnation commonly applied to any of the acts belonging to the former class.—To the former class may be referred—1. the act of eating after the pain of hunger is removed, or considered as applied to articles of food, preferred in respect of their savour. 2. the act of drinking, in like circumstances: 3. the act of smelling to substances agreably odorous: 4. the act of self-intoxication, considered in its various modes; whether, of the intoxicating matter, the form be solid, liquid, or gaseous; vinous or non-vinous: 5. the act of sexuality.

To the other class may be referred, for example—1. Acts, whereby exclusion is put upon such extremes of temperature, as are productive of pain or uneasiness;—acts, whereby disagreable coolness or disagreable warmth are removed: 2. Acts, whereby substances, whether solid or liquid, productive of sensations unpleasant to the surface of the body, are removed: viz. washing clean or wiping dry: 3. Acts, whereby relief is obtained under the species of inflammation commonly called itching. ☛ Per James 1st, pleasure of scratching where it itches, too great for a subject:2 per eundem, as inferred from pg 128practice, pleasure of sexuality in the Attic mode not too great for a King.1

III. Division of acts of sensuality, into those where the pleasure reaped at the time is the effect principally or exclusively important, and those where, by the value of a comparatively remote result in which it terminates, the value of the pleasure is exceeded. To the latter class belong—1. the acts, whereby nourishment is taken in; comparatively remote and more important result, preservation of the existence of the individual: 2. the act of sexuality: comparatively remote and more important, though not in more cases than one out of a number, consequent,—and not in any, more than contingent,—result—contributing to the preservation of the existence of the species.

When the act of taking in the matter of nourishment, in circumstances, in which it is not capable of affording additional security for the accomplishment of the ulterior and more important result, is not condemned, why should the act of sexuality?

In the instance of the act of sexuality, of the only case in which the comparatively remote and more important effect is capable of being produced, the extent, compared with that of the remaining cases put together, is extremely narrow. The description of it, as contradistinguished from those others, is—where, the gratification being social in contradistinction to solitary, the parties are two and no more than two, both belonging to the same species,—the two belonging to the correspondent and opposite sexes,—the female neither short of, nor beyond the child-bearing age, nor in other respects unsusceptible of impregnation, nor yet already impregnated: the parts of the body, respectively employed, on both sides those alone, which are capable of being conducive to the production of the contingent, remote, but most important effect.

Ch. 5. Moral division of the subject, according to the principle of utility. Division of the acts in question into innoxious and noxious: predominant noxiousness the sole proper ground for punishment or disrepute. In this as in all other instances,—on him, by whom such predominant noxiousness is imputed to a pleasure, rests the onus probandi:—the obligation of proving the truth of the imputation.

pg 129Ch. 6. Aspect of the law of public opinion, as towards the pleasures of sense—its errors and inconsistencies.

Condemnation and allowance little governed by utility: condemnation, in many instances most severe, upon those which are least noxious, or altogether innoxious:—allowance, or comparative indulgence, shewn to those which are most noxious. N.B. These errors and inconsistencies are separately brought to view and exposed.

Follow, in the instance of the pleasures of the sexual sense,

  1. I. Cases in which, though the production of the most important effect is impossible, yet, so the sanction of wedlock be not wanting, no condemnation is, by the law of opinion, passed upon the act.

    1. 1. Impregnation already performed.

    2. 2. Impregnation rendered impossible by advanced age or infirmity.

    3. 3. Impregnation impossible; the time being that of menstruation.

      N.B. By the Law of Moses, (Leviticus, xx. 18.) in case of conjunction under that circumstance, death was the punishment of the male:1 the same as for conjunction with the same sex or a different species.2

    4. 4. Impregnation rendered as yet impossible by immaturity of age.

  2. II. Cases, in which condemnation appears to be passed on the act, by the law of public opinion: the order, in which they are here ranged, having in view the strength of the condemnation; and commencing with the cases in which the strength is least:—but,—by reason of the difference, which, in respect of real noxiousness, has place in some instances under the same denomination, and the indeterminateness of the ground in all, and thence the want of agreement among the individuals, of whom, under this law, in the character of Judges, the tribunal is composed,—the correctness of the gradation is unavoidably far short of perfection. Among these distinguish—

  1. I. Cases, in which the more important result, viz. encrease given to the species, stands on the same footing, in respect of probability, with the case in which the sanction of wedlock is not wanting, nor, in regard to impregnation, is any cause of impossibility present.

    1. 1. Parties, not united to one another in wedlock: neither of them so united with any other person:—The case commonly called fornication. In the male, in some opinions, not disreputable; in others, more or less so: in the female, generally and highly so: chiefly by reason of, and in proportion to, the real evils: for which see Ch. 13.3

    2. pg 1302. Parties not united to one another in wedlock: one of them so united to another person.—Adultery—single Adultery.

    3. 3. Parties not united together in wedlock: each united to another person. Adultery—double Adultery.

      N.B. In the case of Adultery, the disrepute, in a degree pretty generally conformable to that of the real mischief, varies in regard to each sex, from a degree not above that of simple fornication, to a degree indefinitely high. But the particulars belong not to the present purpose.

    4. 4. Case of Bigamy. In the instance of whichever of the parties was apprised of the anterior and subsisting marriage, it is the case of Adultery, with an aggravation. But, whereas Adultery has for its sole object the gratification of the sexual appetite, Bigamy, in respect of the contract entered into by it, has frequently, for its principal or sole object, pecuniary gain.

    5. 5. Seduction: viz. of the female by the male: ex. gr. by intoxication, or fraud in any other shape.

    6. 6. Rape:—the gratification obtained by violence.

      N.B. In this and the preceding case, Adultery may have been included.

  2. II. Cases in which the more important result is not possible.

    1. 7. The act, solitary.

    2. 8. Parties two; sexes different: by castration, the male rendered incapable of contributing to impregnation.

    3. 9. Parties two; sexes different. On the part of the female, by immaturity of age impregnation rendered impossible. If the prematurity be such as to exclude what is regarded as adequate consent, the act is regarded upon a footing approaching to that of Rape. The evil is even greater, than in the case of Rape, committed on a single woman, whose virginity is gone.

    4. 10. Parties two; sexes different. To the part susceptible of impregnation in the female, the part susceptible of contributing to impregnation in the male, applied,—but at an age anterior to the existence of the faculty in the male.

    5. 11. Parties two; sexes different. To the part susceptible of impregnation in the female, the part susceptible of contributing to impregnation in the male not applied; but some other part.

    6. 12. Parties two; sexes different. To the part susceptible of impregnation in the female, the part susceptible of contributing to impregnation in the male applied, but purposely in such sort as not to be contributory to that effect.—(The case of Onan in Genesis, XXXVIII. 4.)

    7. 13. Parties two, sexes different. Of the male, the part susceptible of pg 131contributing to impregnation, applied—not to the part susceptible of impregnation in the female, but to some other part.

      Under English law, the female not more than 10 years old, a man was hanged for having applied himself to the rectum, leaving the vagina unpenetrated.1 In the latter case there would have been irreparable corporal damage: in the actual case, there was none. Unless it were meant, that, in every case where precaution is employed to prevent impregnation, capital punishment should take place, proper warning, accompanied with a very particular and correct map of the human body in the female subject, should be published by authority, before prosecution on any such account should be permitted.

    8. 14. Parties, two: sexes the same—the female.

    9. 15. Parties, two: species different: in the human species, sex, the [male].2

    10. 16. Parties, two: species different: in the human species, sex, the female.3

    11. 17. Parties, two: species the same: sexes the same—the male.

    12. 18. Parties, three or more.—To ring the changes of which this case is susceptible would here be useless.

In no instance, other than this of the act of sexuality, has any act of sensuality been considered as being subjected—subjected by Nature, as the phrase is—to any restrictive rule, other than that rule of probity, by which injury to third persons is interdicted, and that rule of individual prudence, by which excess is interdicted: and, in this case, if to the word excess any clear idea is attached, it can not be any thing more or less, than that degree, in which the act has for its consequences a quantity of pain or uneasiness, such as, whether concomitant or subsequent, shall be more than equivalent to the pleasure.

As to any such restrictive rules—excepting the two exceptions just mentioned, so incapable are they of being brought under any one all-pg 132comprehensive and self-consistent principle, that it is only by very particular and detailed research that they could be hunted out, and thus in a distinct state brought to view.

Ch. 7. Principal cause of these inconsistencies, blind antipathy. Principle of antipathy—this and the principle of asceticism, as above, the two spurious principles, with which the field of morals is infested, rivals of the only legitimate and defensible principle—the principle of utility. This from Bentham, as above.1

Ch. 8. Aspect of English law towards the pleasures of sense:—its errors and inconsistencies.—Like exposure, as above.

Ch. 9. Most obnoxious of the pleasures of sense, those which are reaped by gratifications deemed irregular of the sexual appetite:—irregularity whence imputed to them. The mode of sexuality, termed by Beccaria the Attic,2 the most prominent—why:—absurdity of the epithet unnatural, as applied in this case. See Bentham's abovementioned English work as to this.3

☛ Note here the advantages derived from the comprehensiveness of the plan here pursued: for example, the shewing, that in this last mentioned case, no more ground exists for punishment or disrepute, than in so many other cases, as above, in which no punishment is applied. Among a number of modes of gratification all equally innoxious, that indeed would have been best worth rescuing from punishment and unmerited reproach, towards which the propensity is most extensive. But, on any such exclusive plan, the enquiry, besides being incompleat, would have given to prejudice a shock, which by the present course is lessened, if not avoided. Instead of bearing with its whole force upon that one object, the antipathy, thus called forth by a multitude of objects at once, is perplexed and weakened.

pg 133Ch. 10. Properly grounded, and special causes of condemnation, in relation to this same most prominent mode:—properly grounded, viz. in respect of principle, howsoever ungrounded in respect of fact.

  1. 1. Alledged evil, enervation: an assumption of Montesquieu's.1 Answer. 1. Not true, absolutely considered. For proof, reference to the whole tenor of Grecian and Roman history: 2. The reverse true, comparison had with sexuality in the solitary mode: a rival gratification the more powerful, the means being never absent. See Bentham par Dumont.2

  2. 2. Alledged evil 2:—danger of diminution of sympathy, on the part of either or each sex towards the other, to a pernicious degree: in particular on the part of the male as towards the female.—Answer. In no age or country has this danger been found realized. Not in antient Greece or Rome, in both which the Attic mode even received protection from the laws: purchase of slaves for this purpose having the sanction of law. Not at present in any of the nations on the Continent, in which, though proscribed by the laws, it is regarded with so little acrimony by public opinion, that the laws remain universally unexecuted. On the part of males, the sympathy towards females not in a state of prostitution is not affected by it. The shape in which it operates is that of a substitute to sexual intercourse between the sexes in the way of prostitution. In Japan, by Kæmpfer, boys were seen exposing themselves publickly for prostitution,3 as females do here. In this way, whether it be not even productive of good, see Ch. 13.4

  3. 3. Alledged or imaginable evil the third. In the bands of wedlock, in case of an act of infidelity committed with a paramour of the same sex, danger of a wound more severe to the feelings of the wife, than if with a paramour of the opposite sex. Answer. No:—the wound less afflictive. The competition is not so direct and homogeneous. In point of duration, towards a paramour of the opposite sex an attachment of this sort has manifestly no bounds; towards one of the same sex, bounds, and comparatively very narrow ones. Among the Romans, the power of attraction was regarded as generally extinct at the age of pg 13420: at that age a verna changed his title, and became an exoletus.1 Only in the character of a succedaneum to short-lived amours with the opposite sex, or intercourse in the way of prostitution, will intercourse in this mode with the same sex operate: and, from a rival of the same sex with that of the husband, a wife will not be exposed to the danger of that contagion, which might be derived from a female in the state of prostitution, or in the habit of an extensively varied sexual intercourse.

  4. 4. Alledged or imaginable evil, the fourth:—Danger of seduction of pupils by preceptors.—Answer. Suppose the gratification not attended, in the instance of either party, with any assignable evil consequences particular to the case, it is begging the question to state any evil as attached to it. Like pleasure in any other shape, it is, in proportion to the quantity of it, not so much evil, but so much good. Suppose the gratification in this mode not to have place but as a succedaneum to sexual gratification in the solitary mode,—on this supposition, besides the profit in the account of pleasure, it has among the effects of it, profit by the difference in respect of danger on the score of health. In the solitary mode, by no vigilance of guardianship can the gratification be prevented. Even in the social mode, to a youth of the pupil age, a youth of the like age, will naturally be a more inviting paramour, than a man of the preceptorial age. In respect of injury to health by excess, in this mode the danger will, on various accounts, be less from one preceptor than from a multitude of fellow-pupils.

    In this case one imaginable evil is—loss of instruction to the pupil by over indulgence produced by an attachment of this sort. But, upon a close scrutiny (particulars here omitted) the probability of evil in this shape has been found to be but imaginary. Nor does it seem more likely to produce extra-indulgence than extra-diligence.

  5. 5. Alledged or imaginable evil the fifth. Danger of annoyance to the eyes and ears, of third persons in general, in the character of lovers of decency, and special abhorrers of this mode and of every thing tending to excite the idea of it.—Answer. As far as it went, this would indeed be a real evil. But, publicity not being necessary to the gratification,—not only in this mode but in the most regular modes, might publicity of discourse and deportment tending to pg 135excite the propensity be without scruple subjected to a punishment, so it were not greater than in proportion to the offense:—meaning by the offense—not the gratification itself, but the publicity given to the act, or to discourse or deportment exciting to the commission of it. As to any annoyance to which the ear alone might be the inlet, it would have for its repression the same moral force, by which the like annoyance, produced by discourses bearing reference to sexual intercourse between persons of the opposite sexes, is repressed: or in addition, if it were worth while, slight penalties, analogous to those attached to nonsense in the form of cursing and swearing, might be attached. See further Ch. 15.1

  6. 6. Alledged or imaginable mischief the sixth. Tendency to check population.—Answer. 1. The fact denied: witness, spite of continual wars, the continual overflow of Grecian population into Colonies. 2. If true, the consequence would be beneficial. The tendency to encrease under the sanction of wedlock is now universally acknowledged to be in old-settled countries every where too strong not to be detrimental to general happiness: ever out-running the encrease in the means of subsistence.

N.B. Supposing these imputations, all of them, well-grounded in point of fact, still the indication given of the mass of evil flowing from these alledged sources, would compose but one side of the account: on the other side would be to be placed the good, consisting of the pleasure, and of exemption from the pain of the unsatisfied desire.

Ch. 11. Improperly grounded causes of condemnation, in relation to these same modes: viz:

  1. 1. From a religious source, on the score of asceticism, terrors, and those, as will be shewn,2 without foundation in the religion of Jesus.

  2. 2. From antipathy, on a physical account, as towards the practice, antipathy on a moral account, towards individuals, considered as addicted to it.

  3. 3. Notions attached by imagination to the words purity and impurity: moral impurity, confounded with physical, and inferred from it.

  4. 4. Envy, viz. on the score of source and mode of gratification, in which the Censor does not participate.

  5. 5. Desire of praise on the score of virtue:—of virtuous indignation against imagined vice. Thus in Hudibras, Butler, speaking of the Saints of his time—'Compound for sins they are inclined to, By damning those they have no mind to.'3

  6. pg 1366. Opportunity of gratifying, at the expence, and to the utter destruction, of the obnoxious person, antipathy, or even love of sport (see Bentham's Table of the Springs of action)1 without danger or reproach.

  7. 7. Precautionary self-defence against the imputation, when well-grounded in point of fact. In the published works of James I, it is placed by him on the short list of unpardonable crimes.2

N.B. In the four last-mentioned instances, the cause of condemnation is inostensible.

Ch. 12. Evils produced by the punishment attached to these same modes.

N.B. Punishment is in no case justifiable, without proof of an adequate demand for the punishment: in which proof must be included that of predominant noxiousness on the part of the obnoxious practice.—The obligation of proof (onus probandi) lies upon him by whom the punishment is proposed or advocated.

List of these evils—

  1. 1. On the part of those, in whose instance, the propensity having place, fear of the punishment has the effect of producing restraint, loss of the whole mass of pleasure derivable from this source.

  2. 2. On the part of do, pain of privation or unsatisfied desire.

  3. 3. On the part of those, in whose instance the legal punishment takes place, evil of the punishment, viz. death, or long imprisonment with disrepute, according to the turn given to the evidence: viz. according as emission is stated, or not stated, as having taken place.3

    ☛ What a point, for life and death to turn upon!

  4. 4. On the part of those, in whose instance, the propensity having received its gratification, the punishment is regarded as more or less likely to attach, danger of the punishment, and alarm produced by the contemplation of it.

  5. 5. On the part of those, in whose instance the propensity and the practice, though for want of evidence or prosecutor, it stands exempt from legal punishment, is to a certain degree notorious or the object of suspicion,—sufferance, under what Bentham calls the punishment of the popular or moral sanction,4 or danger of such sufferance, and alarm produced by the contemplation of it.

  6. 6. On the part of those, by whom, the propensity having received its gratification, it is regarded as exposing the party to punishment at pg 137the hands of the religious sanction, fear of hell-torments. (For the groundlessness of such fear, see Part III.)1

  7. 7. On the part of those, who,—the propensity having, in that instance, received its gratification, in such sort as to expose them to punishment in consequence of prosecution, grounded on true evidence, capable of being furnished by a partaker in the gratification, or by some casual witness or witnesses,—have, to save themselves from such prosecution, expended money in the purchase of forbearance or means of defence, loss of the money so expended: say, loss by extortion.

  8. 8. Like loss, in the instance of those, who, without ever having been partakers either of the gratification or of the propensity,—i.e. being, in the common phrase, altogether innocent in relation to it,—have notwithstanding, by the fear of prosecution and consequent punishment, or even of disrepute without prosecution, on the ground of false testimony, by mendacious threats, been rendered victims to extortion:—add—more or less extensive danger of such extortion, and more or less wide-spreading alarm produced by the apprehension of it.—N.B. So long as the law stands on its present footing—a single witness being in this as in other cases sufficient for conviction—no man exists, who, how compleatly so ever, in the common import of the word, innocent, can with reason regard himself as secure against the public abhorrence attached by such inveterate prejudice to the propensity, or even against death inflicted by the hand of law under the name of punishment.

Ch. 13. Beneficial effects of certain of these modes (viz. where, the gratification being social, the other party is of the same sex as well as species: in particular where the sex is the male).

List of these beneficial effects.

  1. 1. Where, the choice being entirely free, preference is given to a partner of the same sex, in comparison with a partner of the opposite sex or the solitary mode, difference, whatever in each individual it may be, between the amount of the gratification in the one case and the amount in the other. Say—difference between this mode and one affording inferior gratification.

  2. 2. Where, according to the taste of the individual in question, no gratification at all is afforded by the sexual act in any other mode, the quantity of the beneficial effect is that of the whole quantity of the pleasure derivable from the sense in question during the whole of life. Say—difference between gratification in this mode and total abstinence.

  3. pg 1383. On comparison had between this social and the solitary mode, beneficial effect by the difference between the less danger of injury to health by excess in this case, and the greater danger in the other. See above, Ch. 10.1 N.B. This difference seems scarcely susceptible of having place where the sex is on both sides the female.

  4. 4. Comparison had between this social mode and the social mode partaken of with a person of the opposite sex otherwise than under the sanction of wedlock,—beneficial effect by exemption from the various evils attached to such gratification, according to the circumstances of the case. (See above, Ch. 4. Physical division of the subject.)2

List of these evils.—

  1. I. Evils to the female—

    1. I. Case I. The ordinary case of what is commonly called fornication: adultery out of the question: state in respect of virginity not now considered: age not immature: in respect of consent, no deficiency.

      1. 1. Loss of character and place in society.

      2. 2. Diminution of prospect of permanent comfort and advancement, by and in a state of wedlock.

      3. 3. Danger and alarm, respecting the above losses.

      4. 4. Danger and alarm, respecting the eventual necessity of a forced resort to prostitution as a means of subsistence.

      5. 5. Danger and alarm, respecting impregnation and thence parturition.

      6. 6. Danger and alarm respecting the characteristic contagion.

      7. I. Evils liable in this case to result from parturition, in addition to those pains of gestation and parturition, for which no such compensation as in case of wedlock is here afforded.

      8. 7. More assured loss of character and place in society; and, on the part of a female in a single state, of prospect of permanent comfort and advancement, by and in a state of wedlock.

      9. 8. In case of parturition, burthen of maintenance in regard to the offspring: unless where the male is not only able, but either willing, or by law compelled, to take it upon himself.

      10. II. Evils liable to be produced, by precautions taken for avoidance of parturition, or of the evils incident to it.

      11. 9. Evil attendant on precautions taken against impregnation—diminution of the gratification.

      12. 10. On procurement of abortion, or employment of means for the accomplishment of it, injury to health and danger to life.

      13. pg 13911. Abortion not effected or not endeavoured at, and parturition having taken place, infanticide: with the danger and alarm having respect to legal punishment: viz. under English, as under most if not all modern laws in Christian countries, death:—the blind and undistinguishing inhumanity of the times, in which the laws in this behalf took their rise, making no distinction between the case where sufferance in the extreme to the party put out of life, with danger and alarm to all others within a circle indefinite in extent, is among the consequences of the act, (as in the case of an offence properly denominated murder,) and a case where, as here, no one of those evils has place. See Bentham par Dumont &c.1

    2. II. Case II. At the time immediately antecedent to the act, the female in a state of virginity.

      Of the abovementioned evils, Nos 1, 2, 3 and 4, aggravated.

    3. III. Case III. The case of Rape. On the part of the female, consent wanting; violence employed.

      Evils Nos 1, 2, 3, 4, more or less diminished: but, at the same time, intense pain of mind, and perhaps of body, added.

      N.B. An instance was once known of a rape committed by a female on a male: by the gout, the male rendered incapable of resistance. The circle of alarm could not in this case have been very extensive.

    4. IV. Case IV. Consent regarded as wanting, but the gratification obtained without violence:—ex. gr. by intoxication.

      Pain of mind and body, not as in the last preceding case, produced. But the Evils Nos 1, 2, 3, 4, not so much diminished as in that case.

    5. V. Case V. The female in a state of insanity: thence, on the subject of character and place in society, insensibility.

      Evils, Nos 5 and 6:—of the others, none.

    6. VI. Case the sixth—the case of Adultery—single Adultery on the part of the female:—the female joined in wedlock to another person: the male, not.

      Evils, too various and complicated to be here enumerated. Divide them into 1. Evils to the adulteress herself; 2. Evils to her husband;2 3. Evils to their offspring; 4. Evils to the families they respectively belong to; 5. Law-charges, and other eventual evils of divorce, or of an unsuccessful attempt to obtain one.

    7. VII. Case the seventh—the case of single Adultery on the part of the male: the male joined in wedlock to another person: the female not.

      pg 140To the evils of the last case substitute—1. Evils to the adulterer himself; 2. Evils to the wife of the adulterer;1 3. Evils to their offspring; 4. Evils to the adulteress. As to these, see above, Evils of fornication.2

    8. VIII. Case the eighth—the case of double Adultery.

      For the evils, add together the two masses of evils incident to the two cases of single adultery.

    9. IX. Case the ninth—the case of Bigamy. N.B. Only in so far as the contract is employed as a means of obtaining the gratification of the sexual appetite, does Bigamy belong to the present purpose: it is more apt to have for its object the acquisition of wealth. Divide it into three cases, corresponding to those of adultery, which it includes. Where the bigamy is single, and on the part of the male alone, if the female is conusant of his anterior and still subsisting marriage, the evils on her side to herself are those of fornication, as above, aggravated; if not conusant, those of seduction, as above, mitigated.

  2. II. Evils to the male.—No room here for the specification of them. They may be deduced from the several Cases, applied, as above, to the condition of the female.

Ch. 15.3 Sole real evil, capable of being produced by impunity, if attached to the gratification of the propensity in certain of these modes, general annoyance to popular feelings—proposed remedy.

How void so ever of support on any just grounds, popular discontent is not the less an evil. For the elements of the value of an evil, in this as in all other cases, see above, Ch. 3.4

Proposed Remedy to this evil, punishment, attached to these modes, in the shape of banishment. But, for conviction, except in case of violence, require two witnesses, whereof no person, concerned as principal or accessary in the offence, shall be one.

Ch. 16. Aspect shewn to these same modes by philosophers and other the most popular characters, as well as whole nations, of antient times.

pg 141Ch. 17. Aspect shewn towards these same modes by philosophers, politicians and jurists of modern times—Hume,1 Voltaire,2 Beccaria,3 Bentham.4

Absurdity which Blackstone has been led into, by the necessity of finding a colour for the aspect shewn to these same modes by English law. Under the head of Offences against the security of individuals, the case of gratification by consent confounded with that of gratification by violence:—in like manner as in the notion commonly entertained, concerning the cause of the supernatural destruction of the two inhospitable cities, mentioned in the Bible.5

pg 142Ch. 18. Aspect shewn to these same modes by divers of the most popular authors of novels and romances, essays &c.

For example, 1. Smollet in his Roderic Random. 2. Fielding in his Joseph Andrews. 3. Wieland in his Agathon. 4. Cumberland, in his Observer.—(speaking of Socrates, and, in the teeth of that philosopher's pupil and admirer, Xenophon, denying his participation in the propensity in question). (So Bishop Warburton in one of his works.)1 5. Madam Graffigny, or whoever else was the author of the Peruvian Tales.2

N.B. To passages such as these, in works so extensively diffused, much mischief, viz. by inflaming the antisocial antipathy, can not but be produced. how much less so ever than what, on every occasion, is done, in the same way, by newspapers. ☛ By the thus holding up to view of these instances of groundless censure, after the groundlessness of the moral part of the antipathy has been shewn, the violence of it may, perhaps, be more or less abated.

Ch. 19. Proposed ultimate liberty—viz. all-comprehensive liberty for all modes of sexual gratification not predominantly noxious—addition expectable from it to the sum of happiness.

So far as regards its operation or tendency in the character of a check to over-population, the effect of Malthus's reasoning is—to prove the propriety of granting this liberty. though his situation, in the double character of a Clergyman of the Established Church and an instructor of youth, does not admitt of his proposing it, or directly advocating it. What is advocated, or at least asserted, by him is—the tendency of vice (to use his word) to operate as a check to overpopulation. and, according to him, overpopulation being a great evil, whatsoever tends to check it must in so far operate as a good. as a good upon the balance, until an overbalance on the other side be shewn to have place. and, in the case of what he calls vice, this is what he neither has attempted to shew, nor, as to some part of it at least, can shew.3

Ch. 20. Benefit in this instance to genuine, by the exclusion of spurious, morality.

The service, rendered to happiness in a direct way, may be seen by pg 143reference made to the Contents of Ch. 13.1—To morality,—and thence to happiness, in so far as it depends on morality,—a still more extensive perhaps, though less direct and obvious service, is that which would thus be rendered, by the exclusion thus put upon spurious morality. Spurious morality can scarcely be promoted, but at the expence of genuine. Under Church of Englandism, for instance, (as per Litany) all are 'miserable sinners':2 yet some are saved. This granted, allowance is given to a choice among sins. 'Damning' and giving up, as above (Ch. | |),3 an innoxious sin 'he has no mind to', a man indulges himself in a noxious sin 'he is inclined to':4 and a man who, by religious terrors, has forced himself to give up innoxious gratifications of the concupiscible appetite, is apt to seek indemnity in noxious ones of the irascible appetite. Behold here one source of the propensity to persecution: at the hands of God, a man thinks to purchase forgiveness for noxious sins of his own, by indulgence given to his irascible appetite, in the heaping of sufferance upon others, in consideration of the gratifications, howsoever innoxious, afforded in their instance to the concupiscible appetite.

Thus in religion, so in morals. Note, that, in the case of gratification to the concupiscible appetite, good is certain,—evil, to a more or less considerable extent, but contingent: in the case of gratification given to the irascible, evil certain, good but contingent, and (except in so far as by its operation in the character of punishment, restraint is applied to acts really noxious) always greatly overbalanced by the evil.

Thus it is, that,—when viewed in an unprejudiced point of view, and judged of by the standard of utility,—abstraction made of the case of physical violence and that of terror, sexual gratification in those modes, against which popular antipathy is apt to rage with greatest fury, will be seen not to belong to the department of morality: no more for example than those gratifications, which, having tobacco, in this or that one of its three shapes,5 for their instrument, belong not to any branch of the concupiscible appetite which has a name. Many are the persons, to whom tobacco, when taken by any other person in any one of its three forms, is more or less noisome; none, to whom the sexual gratification, partaken of by others, if with the customary degree of secresy, can, on a physical account, be so in any degree.

pg 144Part III.Asceticism—its repugnancy to the religion of Jesus

Ch. 1. Aspect of Jesus towards the divagations of the sexual appetite.

No condemnation passed by him on any of them: no marks of disapprobation or aversion shewn by him towards them any where. Reasons for supposing he may have been a participator in the Attic taste.

Ch. 2. Aspect of St Paul towards the divagations of the sexual appetite.

Vehemence of the condemnation, passed by him on them generally; but not exclusively on the Attic mode. Cause of this condemnation—Sensual pursuits are, all of them, natural rivals to the religious pursuit, in which he was using his endeavours to take the lead, and by which he succeeded in erecting to himself a sort of empire: the rivality was obnoxious to him, in proportion to the strength of the attraction, and thence of the diversion created by it. In this same view, even marriage was incidentally discountenanced by him. (I Cor. VII: 2.)

Ch. 3. Favourable aspect of some of the primitive Christians towards these same divagations.

Some of the sects took advantage of the liberty left by Jesus: others, in greater number, embraced the system of restraint inculcated by Paul. In the instance in question, under this religion as under other religions, the system of self-denial prevailed over the system of self-indulgence. For obtaining any the least chance of additional security for the infinite joys of heaven,—but more especially for exemption from the pains of hell,—no sacrifice, in the way of self-denial or even self-torment, in the present short-lived state of existence, could (it was naturally and consistently thought) be too great.

Notes Settings


Editor’s Note
1 For the proposed contents of Part I of 'Not Paul, but Jesus' see Gamaliel Smith [pseud.], Summary View of a work, intituled Not Paul, but Jesus: as exhibited in Introduction, Plan of the Work, and Titles of Chapters and Sections, London, 1821.
Editor’s Note
1 See An Introduction to the Principles of Morals and Legislation (CW), Ch. II, pp. 17–21.
Editor’s Note
2 See Traités de législation civile et pénale, i. 6–9.
Editor’s Note
3 See A Table of the Springs of Action, London, 1817, pp. 13–14, reproduced in Deontology together with A Table of the Springs of Action and Article on Utilitarianism, ed. A. Goldworth, Oxford, 1983 (CW), pp. 98–9.
Editor’s Note
1 See 'Sextus', Ch. 2, §1, p. 51& n. above.
Editor’s Note
2 The attribution of this sentiment to James I appears to be apocryphal, though it was commonly made. See, for instance, Jeuan ap Dafydd ap Howel ap Gruffydd ap Dafydd ap Llywelyn [pseud.], Grub-street Journal, no. 70 (6 May 1731), p. 1, respecting the purported ancient Welsh royal office of foot-scratcher: 'The same custom was certainly used in Scotland; which occasioned King James I. to say, that "Scratching for the itch was too great a pleasure for a subject"'; Peter Pindar [pseud. of John Wolcot], The Rights of Kings; or, Loyal Odes to Disloyal Academicians, London, 1791, pp. 2–3: 'Because a confab royal is a treat; / Indeed for subjects much too rich,/ As wise King James asserted of the itch'; and the editorial note to Samuel Butler, Hudibras, 2 vols., London, 1812, i. [38], respecting Part I, Canto I, line 166, 'The itch, on purpose to be scratch'd': 'King James used to say that the pleasure of scratching was too great for any but a sovereign to enjoy.'
Editor’s Note
1 For James I and his alleged homosexuality see p. 23 & n. above.
Editor’s Note
1 The punishment prescribed in Leviticus 20: 18 was not death but that both the man and the woman should be 'cut off from among their people'.
Editor’s Note
2 See Leviticus 20: 13 and 15, prescribing death for both parties 'if a man … lie with mankind' and 'if a man lie with a beast' respectively.
Editor’s Note
3 See pp. 138–9 below.
Editor’s Note
1 See R. v. Wiseman, 16 March 1718, reported in John Lord Fortescue, Reports of Select Cases In all the Courts of Westminster-Hall; also the Opinion of All the Judges of England relating to the Grandest Prerogative of the Royal Family, and some Observations relating to the Prerogative of a Queen Consort, London, 1748, pp. 91–7. The case concerned the master of a workhouse at Maidstone, Kent, who had committed sodomy on a girl aged eleven (not ten, as Bentham states). The trial was held at Rochester, Kent, where the defendant was found guilty, though the presiding judge then 'reprieved the Prisoner, in order to have the Opinion of all the Judges, on this Offence, whether it was Buggery within the Statute or not', that is within the meaning of the Buggery Act of 1533. It was agreed by a 'great Majority' of the judges that the act 'was plain Buggery by our Law'.
Editor’s Note
2 MS 'female'.
Editor’s Note
3 MS del. 'male'. Given that Bentham has amended this case to 'female', it seems likely that this was his final ordering of cases 15 and 16.
Editor’s Note
1 i.e. An Introduction to the Principles of Morals and Legislation (CW), Ch. II, pp. 21–33, and Traites de legislation civile et pénale, i. 10–21. The two works are referred to at p. 126 above.
Editor’s Note
2 Cesare Beccaria (1738–94), Marchese de Beccaria-Bonesana, was author of Dei delitti e delle pene, first published at Livorno in 1764, translated into French by André Morellet (1727–1819), and published as Traité des délits et des peines, traduit de l'italien, d'après la troisième édition revue, corrigée & augmentée par l'auteur. Avec des additions de l'auteur qui n'ont pas encore paru en italien, [Paris], 1766, and into English as An Essay on Crimes and Punishments, Translated from the Italian; with a Commentary, Attributed to Mons. De Voltaire, Translated from the French, London, 1767. The phrase 'l'Attica Venere' appears in the Italian edition in the section headed 'Delitti di prova difficile', but there is no equivalent phrase in the French or English editions.
Editor’s Note
3 See An Introduction to the Principles of Morals and Legislation (CW), Ch. II, pp. 27–8 n.
Editor’s Note
1 See 'Of Sexual Irregularities', §6, pp. 33–4 above.
Editor’s Note
2 See p. 98 & n. above.
Editor’s Note
3 See Engelbertus Kæmpfer, The History of Japan, trans. J.G. Scheuchzer, 2 vols., London, 1727, ii. 507: 'on the chief street of this town [i.e. Kijomitz], thro' which we pass'd, were built nine or ten neat houses, or booths, before each of which sate one, two, or three young boys, of ten to twelve years of age, well dress'd, with their faces painted, and feminine gestures, kept by their lew'd and cruel masters for the secret pleasure and entertainment of rich travellers, the Japanese being very much addicted to this vice.'
Editor’s Note
4 See pp. 137–8 below.
Editor’s Note
1 According to Williams, Roman Homosexuality, p. 79, 'there is an assumption pervading the Roman sources that beardless young men, blessed with the "flower of youth" (flos aetatis), stand at the acme of physical desirability. This period was generally held to end with the arrival of the full beard, and the ceremony that came to be observed to mark that event … seems most often to have been held in the twentieth year or later.' Contrary to Bentham's statement, it seems that the noun verna denominated any slave born in his or her master's house, regardless of his or her age. Masters, however, had the power to use their slaves for sexual gratification: see pp. 78–9 n. above. For the term exoletus see p. 41 n. above.
Editor’s Note
1 See p. 140 below.
Editor’s Note
2 See Part III, Ch. 1, p. 144 below.
Editor’s Note
3 See p. 115 & n. above.
Editor’s Note
1 See 'A Table of the Springs of Action', in Deontology (CW), pp. 85, 114, for the motive of antipathy or ill-will.
Editor’s Note
2 See p. 23 & n. above.
Editor’s Note
3 See p. 57 n. above.
Editor’s Note
4 See An Introduction to the Principles of Morals and Legislation (CW), Ch. III, p. 35.
Editor’s Note
1 See p. 144 below.
Editor’s Note
1 See the discussion of enervation at p. 133 above.
Editor’s Note
2 See pp. 126–8 above.
Editor’s Note
1 See Traités de législation civile et pénale, ii. 280–2, where infanticide is discussed as an offence that does not contain any element of alarm.
Editor’s Note
2 Bentham has indicated his uncertainty as to whether to reverse the order of the first two evils.
Editor’s Note
1 Bentham has again indicated his uncertainty as to whether to reverse the order of the first two evils.
Editor’s Note
2 See pp. 138–9 above.
Editor’s Note
3 Bentham has omitted any mention of Ch. 14.
Editor’s Note
4 See p. 126 above.
Editor’s Note
1 The only direct discussion of homosexuality that has been located in the published writings of David Hume (1711–76), philosopher and historian, appears in 'A Dialogue' appended to An Enquiry concerning the Principles of Morals, pp. 110–23 at p. 117: 'The GREEK loves, I care not to examine more particularly. I shall only observe, that, however blameable, they arose from a very innocent cause, the frequency of the gymnastic exercises among that people; and were recommended, though absurdly, as the source of friendship, sympathy, mutual attachment, and fidelity; qualities esteemed in all nations and all ages.' Bentham may, however, have had in mind a passage from 'The Sceptic' (first published in Essays, Moral and Political, 2 vols., 2nd edn., Edinburgh, 1749, ii. 139–74) in Essays, Moral, Political, and Literary, ed. E.F. Miller, Indianapolis, 1985, pp. 159–80 at p. 162, that supported his own general position: 'If we can depend upon any principle, which we learn from philosophy, this, I think, may be considered as certain and undoubted, that there is nothing, in itself, valuable or despicable, desirable or hateful, beautiful or deformed; but that these attributes arise from the particular constitution and fabric of human sentiment and affection. What seems the most delicious food to one animal, appears loathsome to another: What affects the feeling of one with delight, produces uneasiness in another. This is confessedly the case with regard to all the bodily senses: But if we examine the matter more accurately, we shall find, that the same observation holds even where the mind concurs with the body, and mingles its sentiment with the exterior appetite.'
Editor’s Note
2 In 'Amour nommé Socratique', La raison par alphabet, i. 33–7 (Dictionnaire philosophique: I, 328–33), Voltaire asked, 'Comment s'est-il pu faire qu'un vice, destructeur du genre humain s'il était général, qu'un attentat infâme contre la nature, soit pourtant si naturel?', argued that 'Les jeunes mâles de notre espèce, élevés ensemble, sentant cette force que la nature commence à déployer en eux, et ne trouvant point l'objet naturel de leur instinct, se rejettent sur ce qui lui ressemble', and concluded that the punishment of burning 'est trop fort; est modus in rebus: on doit proportionner les peines aux délits'.
Editor’s Note
3 In An Essay on Crimes and Punishments, pp. 131–2 (equivalent to Dei delitti e delle pene, pp. 80–1; Traité des délits et des peines, pp. 202–4), Beccaria comments that 'The crime of sodomy … is much less the effect of a satiety of pleasures, than of … education…. In those public seminaries, where ardent youth are carefully excluded from all commerce with the other sex, as the vigour of nature blooms, it is consumed in a manner … useless to mankind', and concludes that 'the punishment of a crime cannot be just … if the laws have not endeavoured to prevent that crime by the best means which times and circumstances would allow'.
Editor’s Note
4 For Bentham's view that consensual activity in general, and consensual sexual activity in particular, should not be subject to penal sanction see, for instance, A Comment on the Commentaries and A Fragment on Government, ed. J. H. Burns and H.L.A. Hart, London, 1977 (CW), p. 419 n.; An Introduction to the Principles of Morals and Legislation (CW), p. 159; and Traités de législation civile et pénale, ii. 249–50, 380–1.
Editor’s Note
5 Bentham's point was that the destruction of Sodom and Gomorrah recounted in Genesis 19: 1–26, which, according to Blackstone, Commentaries on the Laws of England, iv. 216 (in a Chapter entitled 'Of Offences against the Persons of Individuals'), indicated that God intended capital punishment for sodomy to be 'an universal … precept', did not infer condemnation of sodomy as such, but rather of the force and the violence with which the attempted violation of the two 'angels' was attended, and its tendency to undermine the practice of offering hospitality to strangers.
Editor’s Note
1 For Bentham's more detailed consideration of these examples see 'Sextus', Ch. 9, pp. 85–9 above.
Editor’s Note
2 For Gueullette's Peruvian Tales see p. 87 n. above. Françoise de Graffigny (1695–1758), French novelist and playwright, was the author of Lettres d'une Péruvienne, which first appeared anonymously without date or place of publication, but was published in France, possibly at Paris, in 1747.
Editor’s Note
3 For Bentham's discussion of the views of Malthus see 'Sextus', Ch. 7, §1, pp. 79–83 above.
Editor’s Note
1 See pp. 137–40 above.
Editor’s Note
2 See p. 114 & n. above.
Editor’s Note
3 See Ch. 11, p. 135 above.
Editor’s Note
4 See p. 115 & n. above.
Editor’s Note
5 i.e. for smoking, chewing, and snuff.
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