In Théorie des Peines et des Récompenses (1811, edited by Étienne Dumont) and The Rationale of Punishment (1830, edited by Richard Smith), chapters addressing ordinary communication with prisoners have similar forms. In both editions, the relevant chapter is Book II, Chapter IV/4. In Dumont’s edition, it is entitled “De l’Emprisonnement”; in Smith’s edition, “Imprisonment.” With only a few exceptions, all the section headings, list items, and paragraphs in Dumont’s chapter and Smith’s chapter correspond in order, number, and topic.
Textual analysis, however, indicates that Smith acquired his chapter’s text directly from Bentham’s manuscripts, rather than by re-translating Dumont’s chapter. The final two sentences in the first paragraph in Smith’s chapter state:
When thus employed {imprisonment for safe custody}, it ought not to be more severe than is necessary to insure forthcomingness. Whatever exceeds this, is so much misery in waste.^
The ponderous neologism “forthcomingness” is characteristic of Bentham’s writings, as is the jarringly utilitiarian phrase, “misery in waste.” Dumont used more common diction in translating the same idea:
En fait de sévérité, le simple emprisonnement ne doit pa aller au-delà de son but. Toute rigueur excédant l’objet de la sûre-garde est un abus.
(Regarding severity, simple imprisonment should not go beyond its purpose. All hardship exceeding the goal of safe-keeping is an abuse.)^
Smith’s text is consistent with Bentham’s style and could have easily served as the basis for Dumont’s translation. That Dumont’s text served as the source for Smith’s text is highly unlikely.
Other corresponding sections of these chapters also indicate that Smith’s text incorporated Bentham’s text directly, rather than through retranslation from Dumont. In Smith’s text, the second item in the list of negative evils inseparable from imprisonment is:
2. Privation of the liberty of taking pleasurable exercises that require a large space, such as riding on horseback or carriage, hunting, shooting, &c.^
Dumont’s corresponding text is:
2. Privation des exercises agréables qui requièrent un espace étendu pour s’y livrer : l’équitation, la chasse, les courses champêtres.
(2. Deprivation of pleasurable exercises that require a large space: equestrian activities, hunting, country racing.)^
The repetition “hunting, shooting, etc.” is not likely to have come from Dumont’s text or Smith’s editing. Consider also the next two items. According to Smith’s text, they are:
3. Privation of those excusions which may be necessary even for health.
4. Privation of the liberty of partaking of public diversions.
Dumont’s corresponding text is:
3. Privation des voyages qui peuvent meme être nécessaries pour la santé, comme les bains de mer ou les eaux minerals.
4. Absence de tous les amusemens publics, assemblées, spectacles, bals, concerts, etc.
(3. Deprivation of trips that might even be necessary for health, such as ocean baths and mineral waters.)
(4. Absence of all public entertainments, assemblies, plays, balls, concerts, etc.)
Bentham tended to write at a high level of abstraction, with considerable paratextual structure and repetition. Smith’s text has these characteristics. Dumont’s text adds examples that give the items concrete references. Dumont’s text also reduces repetition by varying the first noun of the items.
The few larger textual differences between Smith’s and Dumont’s chapters also indicate that Smith favored Bentham’s manuscripts over Dumont’s text. Under “nourriture suffisante” (sufficient nourishment), Dumont’s text includes:
N.B. – Une règle générale decette espèce est oiseuse et futile. It faut suite de règlemens pour determiner le number des onces de pain ou d’autres alimens à fournir aux prsonniers.
(N.B. – A general rule for this issue is idle and futile. It is necessary to make a set of rules that determine the number of ounces of bread or other foods to provide for the prisoners.)^
This is a strong statement explicitly highlighted. Similarly, as a remedy for the evil of “sensation of cold,” Dumont’s text states:
Règlemens précis à cet égard. – Construction de l’édifice, ménagée de manière à y maintenir, sans danger d’incendie, une température convenable.
(The rules are precise in this regard. – Construction of the building, in such a manner as to maintain it, without danger of fire, at a suitable temperature.)^
Smith’s text omits the first note, and in place of the second, has just the word “fire.”^ If Smith had been retranslating Dumont’s text, surely he would not have omitted these statements. They are best understood to be Dumont’s additions that Smith did not include because he was following Bentham’s manuscript.
The difference in the placement of an unusual, paragraph-long example also indicates that Smith read the relevant Bentham manuscripts and favored them over Dumont’s text. Both Smith’s and Dumont’s text include a paragraph concerning the affliction a superior caste Hindu feels when being forced to associate with persons of inferior rank. Dumont almost surely did not write this detailed, odd text. He included it, however, as the concluding paragraph of his chapter.^ In Smith’s chapter, that text is a long footnote to the accessory evil, “forced obligation of mixing with a promiscuous assemblage of his fellow prisoners.”^ Smith is unlikely to have shifted, by his own authority, Dumont’s concluding paragraph to a footnote. Unlike Dumont, Bentham would have been concerned with not appearing to be entertaining readers. Bentham most likely included this tangential example in a formally reasonable position. That is its position in Smith’s text.
The Rationale of Punishment, Book II,Chapter 4, “Imprisonment,” apparently drew from three groups of Bentham manuscript folios. The first five paragraphs of that chapter are topically related and stylistically similar. They probably came from one folio. The relatively long sixth paragraph begins with a general clause having no relation to the previous paragraph. The sixth paragraph largely discusses the topics of the previous five paragraph, but more diffusely and with less structure. Hence the sixth paragraph probably came from a different folio than the preceding five paragraphs. The rest of the chapter, which contains Bentham’s statements concerning communication with prisoners, is closely integrated topically and formally. It consists of four closely related, explicit enumerations of issues, with a relatively large number of items in the enumerations (eight, seven, ten, and ten). The third section thus has a similar form to Bentham’s Introduction to the Principles of Morals and Legislation, printed in 1780. It probably came from one or more consecutively written Bentham folios.
The clause “although they should be permitted to come to him” in the item concerning prisoners’ communication with family and friends probably was not text that Smith added. In Book II, Chapter IV, Dumont’s Théorie des Peines et des Récompenses (1811) states as an evil inseparable from imprisonment:
5. Absence des sociétés particulières avec lesquelles on est dans l’habitude de vivre; perte des plaisirs domestiques, dans le case où un prisonnier a une femme, des enfans, des parens proches.
(5. Absence of the specific society with which one usually lives, loss of domestic pleasures in the case where a prisoner has a wife, children, and close relatives.)^
The corresponding text in The Rationale of Punishment (1830):
5. Abridgement of the liberty of going out to enjoy agreeable society, as of relations, friends, or acquaintance, although they should be permitted to come to him.^
The preceding clause of the sentence uses the phrase “of going out.” That phrase, which is superfluous, balances “to come to” in the subsequent clause. Over the ensuing half-century that preceded Smith’s edition, changes in communication policies for prisoners strongly favored restricting communication. Smith, a low-status, anonymous editor with great respect for Bentham, probably would not have appended the latter clause to Bentham’s text. Doing so would have inserted an inconsistency with leading thought on imprisonment at the time Smith published his edition.