The Online Library of Liberty

A project of Liberty Fund, Inc.

• Book I.
• Preface.
• Introduction.
• Chapter I.: General Division of the Aggregate Body of the Law.
• Chapter II.: Constitutional Law.
• Chapter III.: Civil Or Distributive Law. *
• Chapter IV.: Penal Law.
• Chapter V.: Procedure Law. †
• Chapter VI.: Financial Law.
• Chapter VII.: Prescriptions Or Bearings of the Other Codes Or Branches of Law, to the Constitutional Code.
• Chapter VIII.: Public-opinion Tribunal.
• Chapter IX.: Good Rule and Bad Rule.
• Chapter X.: Corruption.
• Chapter XI.: Delusion.
• Chapter XII.: Fiction.
• Chapter XIII.: Factitious Honour.
• Chapter XIV.: Established Religion—none.
• Chapter XV.: Supreme Constitutive.
• Chapter XVI.: Supreme Legislative.
• Chapter XVII.: Supreme Operative.
• Book II.
• Preface to the Original Edition of Book II.
• Chapter I.: Territory of This State, Name, Situation, Boundaries, Divisions.
• Chapter II.: Ends and Means.
• Chapter III.: Sovereignty, In Whom. *
• Chapter IV.: Authorities.
• Chapter V.: Constitutive Authority. *
• Chapter VI.: Legislature.
• Chapter VII.: Legislator’s Inaugural Declaration. *
• Chapter VIII.: Prime Minister.
• Chapter IX.: Ministers Collectively.
• Chapter X.: Defensive Force.
• Chapter XI.: Ministers Severally.
• Chapter XII.
• Chapter XIII.
• Chapter XV.
• Chapter XVI.: Quasi-jury.
• Chapter XVII.
• Chapter XVIII.
• Chapter XIX.: Government Advocate General.
• Chapter XX.: Eleemosynary Advocates.
• Chapter XXI.
• Chapter XXII.
• Chapter XXIII.
• Chapter XXIV.
• Chapter XXV.
• Chapter XXVI. *
• Chapter XXVII.
• Chapter XXVIII.
• Chapter XXIX.
• Chapter XXX.
• Chapter XXXI.
• Appendix.
• No. I.
• No. II.
• No. III.
• No. IV.
• No. V.
• No. VI.
• No. VII.
• No. VIII.

CHAPTER IV.

PENAL LAW.

The accession made to the stock of happiness by everything that is actually done by the power of the law, is extremely small, in comparison with that which is made by the expectation of what it eventually will do: what it does by affording compensation, in comparison with what it is expected eventually to do, in the way of punishment.

In the way of compensation, it makes not any positive addition to the stock of happiness: all it does is, to reduce a defalcation that has been made from the stock of happiness. It creates not any instrument of felicity—towards augmentation, or rather lessening the diminution in, the stock of felicity; all that it can do is, by transferring a portion of the stock of these instruments from hands in which it would have produced less, into hands in which it will produce more, felicity. This is the utmost which it does in the most favourable case. The most favourable case is where, at the charge of an indigent man, injury having been sustained at the hands of a rich man, it affords him compensation at the charge of the rich man. Suppose, that taking advantage of the injury, to promote equality without detriment to security, it renders the condition of the indigent man, at the expense of the rich man, better than it was before the injury, still, along with the good thus done, factitious evil created by the law is mixed.

On the other hand, whatsoever of good is produced by expectation of what the law will eventually do—all this good is pure.

The penal branch of law has for its object and occupation, the giving execution and effect to the civil or distributive branch; as also a portion of the constitutional branch: such is the benefit conferred, or sought to be conferred by it. But no benefit, as we have seen, can have existence, but with, and by means of, a correspondent burthen. No profit without loss: without expenditure and expense, which is voluntary loss. What remains is, that in quantity and value, the benefit—the profit—be as great, the burthen—the loss—as small as possible.

For rendering it such, keep in mind this radical allusion. The community is the body politic. Misdeeds are its disorders. Occupied on the penal branch of law, the legislator is its medical practitioner—its surgeon. In a surgical operation the cure is the benefit: the pain of the patient the burthen. The operations of the surgeon have for their object, the rendering the cure as prompt and as complete as possible, at the expense of as little pain as possible.

The surgeon, when he cuts into the bladder of the patient for the extraction of a stone—does he say, the patient deserves to be so cut? Not he indeed: by no surgeon was any such absurdity ever uttered.

The possessor of political power—the magistrate—the legislator—has, at all times, in all places, uttered it without a blush. Why? Because, at all times, in all places, till yesterday, and in the new world, the magistrate—the legislator—such is man’s nature—have been tyrants: tyrants having each of them, for the object of his acts as such—not the greatest happiness of the greatest number, but his own single greatest happiness.

In the origin from which he deduced the word, indicative of the demand for, or propriety of, the punishment, he was occupied in the application of,—he found a pretence for tyranny: for tyranny exercising itself in the taking of vengeance. The term desert, (which is not applicable without hazarding the production of useless punishment to an indefinite extent,) is, and ever was, in use to be employed (without hazard of any such evil,) where, on the occasion of a contract for service between individual and individual, good, in the shape of reward, was to be applied: on the one part, the work contracted for, has been done—the service has been performed: at the hands, and at the expense of, the other, title has been made, to the correspondent service: the pay—the reward—has been deserved.

Hence arise two radical positions:—

1. Objects which punishment ought never to propose to itself are, vengeance, establishment of imaginary congruity and equality between transgression and punishment.

2. Objects which punishment ought ever to propose to itself are, Compensation, in so far as the nature of the case admits of the application of it, for the evil produced by the misdeed: prevention of the commission of similar misdeeds in future, as well by the misdoer himself as by all other individuals taken at large.

Exacted at the expense of the evil doer, compensation necessitates suffering: exacted in consideration of, and in proportion to, the evil done by him, that suffering, by the whole amount of it, operates as punishment.

In the first place, compensation for the party injured: in the next place, over and above compensation, punishment for the benefit of the public, and punishment for appeasement of the wrath of the offended and wrathful monarch—such is the arithmetic of tyranny. Punishment, including to the profit of the monarch, the exaction of the whole of that matter by which compensation to the individual injured, might have been afforded; after that, compensation or no compensation to the individual injured—such is the order, the method of tyranny. Compensation by one course of procedure: punishment by another, and a different course of procedure; reformation, by health given to the soul, by a third and different course of procedure: such is the arithmetic of lawyer-craft—confederate partner and instrument of tyranny; of lawyer-craft in its most rapacious character, and elaborate garb—the character and garb of the English lawyer.

Compensation and satisfaction are synonymous. Of the word compensation, the psychological import has its root in the physical idea of weight: compensation is weight for weight: satisfaction is giving enough for what has been suffered, in such sort that the weight of the good in the scale of enjoyment, shall be equal to the weight of the evil in the scale of suffering.

Satisfaction has been distinguished into lucrative and vindictive. Lucrative is satisfaction in any shape, considered otherwise than with a view to vengeance. Vindictive satisfaction, is satisfaction in any shape, considered with a view to vengeance.

In no shape or quantity should suffering be created, for the single purpose of affording satisfaction of the vindictive kind.

Only when, for the sake of the community at large, punishment is inflicted, if there be any shape by which (without increase of suffering to the wrong-doer) satisfaction to the individual wronged, may be administered, that shape may be employed.

By that shape, the apprehension of the eventual punishment may, moreover, be rendered the more impressive upon the mind of him, on whom the temptation to do the wrong is operating.

To the word punishment, lawyercraft, in confederacy with religious fraud and hypocrisy—and in subserviency to monarchical tyranny, has, of late years, furnished a synonym—viz. visitation—penal visitation.

In the language of the English translation of the Bible, visitation is employed as synonymous to punishment, Synonymous? But in what case?—where the misdoer being a man, the ruler is the invisible Almighty. Considered in this point of view, sin is the name employed for the designation of the misdeed.

Of the Almighty invisible, whose throne is in heaven, the monarch is the visible representative here on earth: the representative, according to the certificate given to him by Blackstone: invested with no small part—with as large a part as is necessary for the accomplishment of the indisputable object of his government—the greatest happiness of him in comparison of whom all others are but as creatures to their Creator,—invested, in a word, with a completely sufficient part of his divine constituent attributes. By the alleged offender, a misdeed has been committed. By this misdeed, the monarch has been offended. The monarch, being god upon earth, the offence is a sin. Sins deserve to be visited. For this his sin, this sinner deserves to be visited. At the charge of him by whom sin has been committed, punishment is due. Proportioned to the dignity of the offended ruler, should be the magnitude of the punishment. Where the offended ruler is that God which is in heaven, dignity being infinite, that punishment ought to be, and is, in each instance, infinite. Where the offended ruler is that god which is on earth, the punishment ought not to be infinite, it ought only to be next to infinite. Were justice alone consulted, such, accordingly, would be the punishment of this sinner. But in the heart of that god which is upon earth, and with us, justice has, for her never-failing companion and appeaser, mercy. Mercy has for her function the rendering of no effect to an amount more or less considerable, the decrees of justice. In this, as in all other cases, mercy has interposed, and,—after deducting from what has been ordained by justice, what has been substracted from it by mercy,—the balance forms that punishment which the sentence is about to declare.

In relation to punishment, considered as so much evil, employed as a means for excluding,—as far as possible, without greater evil, evil considered as producible by misdeeds, thus converted into offences, three main questions on every occasion present themselves.

In what cases shall punishment be applied?

In what proportion?

In what shape?

In what cases shall it be applied? To a question of the opposite aspect,—the question, in what cases shall it not be applied?—a more commodious, howsoever indirect, answer, may be given.

Where it would be groundless.

Where it would be needless.

Where it would be inefficacious.

Where it would be unprofitable.

In each one of these cases, supposing them realized, punishment, it is evidently manifest, would be unapt: of all these cases, it may be said, they are unmeet for punishment.

Case the first.—Where punishment would be groundless: where the application of punishment would be unapt. Necessarily included in the notion of punishment is the notion of misdeed done, of offence given. Of the sort of operation by which, for the exclusion of greater evil, evil is purposely produced, the operation called punition, or more commonly punishment, is but one mode. For, taken by itself, government is in itself one vast evil: only except, in so far as evil, already produced by it, is done away or lessened, can any exercise of government be performed—can the power of government be in any way exercised, but evil is produced by it. But wherever, by evil thus produced, greater evil is excluded, the balance takes the nature, shape, and name of good; and government is justified in the production of it. In this case in the account of good and evil, the evil produced and applied in the shape of punishment would, unless it excluded some greater evil, or produced some preponderant good, be all loss.

Thus it is, that where evil applied as punishment would be groundless, what will often happen, is—that evil produced, though designedly, is not causeless—is not unjustifiable.

Where it would be needless. Here the circumstance from which the evil receives the denomination of punishment, viz. misdoing, offence has place: as such, evil is among the consequences of it. But, by the operation of some other cause, all the relative good that could be done by the evil of punishment, is done without it. In this case, therefore, whatsoever portion of punishment were applied, would be all loss.

Where it would be inefficacious. In this case, too, be the evil of the offence ever so great, the evil of punishment, though it could not be said to be needless, would, however, be all loss; to the undiminished evil of the offence, would be added the evil of the punishment.

Where the punishment would be unprofitable. Of the evil which, in its totality, would otherwise be produced by the offence, a portion, more or less considerable, would be excluded by the punishment; but the evil thus introduced is greater than the evil excluded by it.

In the three former cases, the evil of the punishment is all loss: in this last case, the evil produced is not all loss, but, after deducting, from the sum of what is produced by it the sum of what is excluded by it, there still remains on the balance a net remainder, or difference, which is so much loss.

Comprehensive, and on that account, theoretical as the description of these cases may appear, there is not one of them that has not, to a vast and deplorable extent, had its exemplification in practice. To afford an indication of every one of them, would be to give an all-comprehensive picture of whatever has been hitherto done on the field of penal law.

Rules tending to augmentation of punishment:—

In no case leave to the evil-doer any net profit from his evil-doing.

In adjusting the quantum, have regard to all the several articles in the list of aggravating circumstances: circumstances aggravating either the evil of the offence, or on any other score, the demand for punishment. See whether any have had place in the case in question.

In no case suffer anti-conscientious pursuit, or practice, to go unpunished: whether principal or incidental: whether at the commencement the party were in the wrong or in the right: for, by a man whose demand is just, anti-conscientiousness may have been manifested by the practice employed in the pursuit of it.

In particular, if the anti-conscientiousness be accompanied with mendacity.

Rules tending to diminution:—

To the account of punishment, place every pecuniary loss, or other hardship, produced on the part of the injurer, by compensation afforded at his expense, to the injuree.

So, every suffering produced on his part, by means of the pursuit, whether by pecuniary expense, by loss of time, or by vexation in any other determinate shape.*

[* ]For farther elucidations on the subject of this chapter, see the Principles of Morals and Legislation, and cognate works, in vol. i.