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CHAPTER IV.: DEFEAZANCE OF PUNISHMENT. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
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DEFEAZANCE OF PUNISHMENT.
It is necessary to increase the magnitude of a punishment in proportion as it is wanting in certainty. The less certain your punishments are, the more severe they must be; the more certain your punishments are, the more you may reduce their severity.
What shall we then say of a power expressly established for rendering them uncertain? I mean, the power of pardoning: it has cruelty for its cause; it has cruelty for its effect.
Among nations, as among individuals, the government of the passions precedes that of reason. The object of primitive punishments was to assuage the rage of their authors. Of this there are two proofs: the first is drawn from the multitude of cases in which the most severe punishments have been lavished upon actions which have but a slightly hurtful influence upon the happiness of individuals or society, and with respect to which, such evil influence was not sought to be established till long after these punishments were appointed: of this kind are the punishments directed against heresy. The second is drawn from the praises lavished upon clemency: for whilst the effect of an offence is only to enrage the sovereign, there is merit in his abstaining from punishing it. There is utility in his so doing, for by a privation which is borne by him alone, he spares the infliction of terrible evils upon a multitude of persons. In this consists the difficulty; for it is difficult for a man accustomed to follow the bent of his inclinations, to restrain them. Suppose the effect of a crime is to interrupt his ease, and the effect of the punishment is to repress this crime: to abstain from the application of this punishment is a treason of which the most pardonable sources are feebleness or folly. To praise the elemency of the sovereign upon this supposition, is to praise the surgeon who allows his patient to perish by not cutting off a gangrened finger. Among sovereigns, therefore, without cruelty, the use of unmerited pardons could not take place: the reason is, an enlightened love of the public welfare does not engage him in undoing with one hand what he had done with the other. If the punishments have not had, for the cause of their establishment, cruelty towards individuals, it is cruelty towards the public to render them useless—to violate his promise, the engagement which he has made to the laws to put them in execution.
I speak here of gratuitous pardons, such as all pardons have hitherto been. There are cases in which the power of pardoning is not only useful, but necessary. In all these cases, if the punishment were inflicted, the evil produced would exceed the good, and, in some cases, almost infinitely. If the legislator could have known that certain individual cases would or would not be included in the general case in which he would have wished that the punishment should cease, he would act unwisely were he to rely upon any other person for its cessation. For why should he give to another a power to frustrate his designs? But he does not possess this knowledge, unless, in quality of legislator, he acts also in that of a prophet. It follows, therefore, that he must rely upon some other.
In English law, one method by which the law gives to a party injured, or rather to every prosecutor, a partial power of pardon, consists in giving him the choice of the kind of action which he will commence. On this, or on the difference between the actions, depends a difference between the punishments: so far as the happening of this difference is concerned, the lot of the offender depends not on the gravity of his offence, but on some other foreign circumstances; such as the degree of the ill-will of the party injured, or other prosecutor, or of the knowledge of his legal advisers. The judge is a puppet in the hands of any prosecutor, which he can cause to move at his pleasure and caprice.
There are many persons, as we have seen, who exercise the power of pardoning: there are many others who possess it, who are not observed.
Among the latter class may be placed those who have the power of placing nullities in the course of procedure. In England, an attorney, or his clerk, any copying clerk at eighteen-pence or two shillings per day, may grant or sell impunity to whomsoever it seems them good.
If the individual injured can directly, or indirectly, put an end to a criminal process, otherwise than by the punishment before the judgment has been pronounced, and, in case of conviction, executed, he enjoys in effect this right of pardoning. The right of remission is, then, one branch of the power of pardoning. When the interest of the public requires that the punishment should take place, the individual injured ought not to enjoy this right: when this interest does not require it, he may enjoy it.
This power may be allowed in all cases, when the offence on which it operates, being founded only in a private quarrel, does not spread any alarm through society, or at least does not spread any alarm which the conduct of the parties does not destroy.
But in the case of corporal injuries, how trifling soever, and especially in the case of injuries accompanied with insult, this remission ought not to be allowed without the knowledge of the judge; otherwise the weakness and good-nature of some minds would serve to draw down upon them vexation from hardened oppressors.
Homicide is a case in which the power of remission ought not to be allowed to any one in particular. It would, in effect, be to grant to him an arbitrary power over the life of those whose death he might thus pardon: he might boldly employ any assassin, by exercising in favour of that assassin his power of pardoning.
If to grant to any one whatsoever, the power of taking away a reward offered by the legislator, would be regarded as an absurdity, to grant the power of taking away a punishment in the opposite case, with the reserve of specific exceptions, would be a more terrible absurdity.
This absurdity is not found in the system of rewards: no person proposes to take away a reward after the legislator has offered it; the nullitics, however, allowed in prosecutions, when he has appointed a reward for offenders, operates to this effect in the case of punishment.
The frequency of capital punishment is one of the most probable causes of the popularity of pardons.
In England, it may therefore admit of debate, whether the legislature has done most evil by appointing so many capital punishments, or the sovereign, by exercising his power of remitting them.
The essence of this power is, to act by caprice. The king, as it is falsely said,—the deputy of the king, as it ought to have been said—does not act judicially: he does not act from a knowledge of the matter; he has not the power of doing so; he has not even the power of compelling the attendance of witnesses. Is a lie told before this powerless despot? it is an unpunishable lie.
The power of pardoning is often said to be one of the brightest jewels in the royal crown: it is burdensome as it is bright, not only to those who submit to the crown, but still more so to him also who wears it.
Many cases have occurred in England, in which the counsellors of the crown have, from more or less praiseworthy motives, made use of this lawful despotism of the king, to soften the tyranny of the laws. Never was power so undoubtedly legal, though undue, employed for a mere legitimate purpose:—the result, however, has been, not that the minister has been applauded as he deserved, but that he has become the object of clamour, libels, and threats. The most correct and legitimate exercise of the powers impolitically attached to his character, has only served to draw down upon the king that treatment which a tyrant would have merited.
How much discontent and fear would have been spared, if a right, legally abusive, had given place to an enlightened and well-ordered law!
By Length of Time.
Ought punishment, in any cases, and in what, to be defeasible by length of time—by the time, I mean, that has elapsed since the commission of the offence?
At first view, the answer seems to be clearly in the negative; for what, it may be said, has the circumstance of the length of time to do with the demand there is for punishment?
Upon a nearer view, however, it will be found, that the utility of prescription in certain cases is maintainable by specious, at least, if not conclusive arguments.
As a foundation for these arguments, it must be admitted, that if in any case the suffering of the delinquent is not necessary for the attainment of the ends of punishment, the punishment ought not to be inflicted.
This being premised, it should seem, that in a view to one of the ends of punishment, to wit, reformation, the execution of it after a certain length of time is not necessary. A certain number of years, suppose ten, has elapsed since he committed the offence: now then, in all this time, either he has committed similar offences, or he has not. If he has not, he has reformed himself, and the purpose of the law has been answered without punishment: if he has, he has been punished for subsequent offences, and the discipline he stood in need of has been already administered to him, at a time when he stood more in need of it than he can be supposed to stand at present.
Thus stands the argument upon the ground of reformation: but of the facts alleged, one, it must be confessed, is rather problematical. If a man commit an offence, and is forthcoming ten years afterwards, it is by no means clear, from his not having been punished for any similar offences, that he has not committed any. In the same manner that he escaped detection or prosecution for the first, he may have escaped detection or prosecution for any number of other similar offences. The difficulty of detection, the death of witnesses, the subtleties of procedure, are circumstances that afford ample grounds for disputing the force of the inference, from his not having incurred punishment, to his not having deserved it.*
Upon the ground of example, there is still less to be said in favour of prescription. If the prescription is not to take place till at the end of a long period, as ten years (the number above taken for an example), it will not contribute, in any assignable degree, to lessen the apparent value of the punishment. When a man meditates a crime, his great fear is the being detected and apprehended, immediately almost upon the commission of it. The taking away the danger that would await him at the end of ten years, will add very little to his security.†
When a crime has been committed, either the person only who committed it may remain unknown, or the fact‡ itself, as well as the person. If either be unknown, it is plain no prosecution can have been set on foot: if both be known, then either a prosecution may have been set on foot or not. It is only in case of there being no prosecution, that prescription has ever been allowed. The rule is, that a man shall not be prosecuted after that interval has elapsed—not that, if he has been prosecuted and convicted, he shall not suffer.
The apprehension of danger commences at the time of the discovery. Persons who are about the criminal now understand that they have among them a thief, a robber, or a murderer: this cannot but give them some alarm. If no punishment at all is to be inflicted on him, if he is suffered to go on and live where he did before, how is this alarm to be quieted?
In crimes, the object of which is a pecuniary profit, prescription ought not in any case to operate so as to protect the delinquent in the enjoyment of his ill-gotten acquisition.
Neither ought it to operate in such manner as to leave innocent persons exposed to suffer from their terror or abhorrence of the criminal.
There are also certain crimes, in respect of which prescription ought not to be adopted in any case. Such are three species of homicide: viz. homicide for lucre, through wantonness, or from premeditated resentment; incendiarism; and the offence of sinking a vessel manned, or of laying a country under water. The mischief of crimes of these kinds is so great, that it seems paying too great a regard to the interests of the criminal to adopt a rule that may contribute, though in ever so small a degree, to lessen the apparent certainty of the punishment; and the horror or terror a fact of any of those kinds inspires when discovered, is so great, that that circumstance alone seems enough to overweigh any good that could be gained by it.
What is the good in view in prescription? It is the interest of one single person that is in question—the delinquent; the sparing of that single person from a suffering which it is supposed it may, in the case in which it is proposed the prescription should take place, not be necessary, at least not so necessary as formerly, to the purposes of punishment to inflict. Now, when it is a crime by which men are exposed to suffer in their individual capacities, it can scarcely be detected, but a multitude of persons must begin to suffer; to wit, by the apprehension of his committing other such crimes in future, of which they may chance to be the objects: and this suffering of theirs will continue till he be manifestly disabled to hurt them; the least penal method of doing which, is to send him out of the way.
Upon this slight examination, we perceive that the utility of prescription will vary greatly in respect of different offences. To discuss this topic completely, it would be necessary, therefore, to consider it with a view to the several sorts of offences. To do this fully, belongs not to our present subject: all we can do in this place is to offer a few general hints, just to put us in the way, and to serve as a clew to indicate the principal points upon which the inquiry ought to turn.
Whether a given person, detected, after such a length of time, of a crime of the sort in question, is or is not an object of terror to those around him, is a question that can be answered only by a particular inquiry: it is a matter, therefore, that ought rather to be committed to the magistrate who has the power of pardoning, than to be provided for by a general law.
By Death of Parties.
In pursuit of (the means of making) compensation, the business of punishment is apt to be overlooked. When one man, the party injured, is presented with what another man, the injurer, is made to pay, men are apt to take it for granted, and at first asking would be apt to answer, that there is no punishment in the case. They imagine, but hastily and erroneously, that the only person who has suffered by the offence is that party who is the immediate object of the injury. If, then, that person, by an operation of law, be made to enjoy as much as by the offence he had been made to suffer, they conclude (and justly enough, were the foundation true) that everything is set to rights, and that the law has nothing more to do. The pain which the offender is made to suffer by being made to give up what the party injured is made to enjoy, they do not look upon in the light of punishment. They look upon it as a circumstance resulting, accidentally and unintentionally, out of the operation by which an indemnification is produced to the injured party, so that it would be but so much the better if that pain could be altogether spared; and it is for want of being able to save it, that it is suffered to exist. In short, so entirely is the idea of punishment lost in that of compensation, that a law which appoints the latter, is not understood to appoint the former; is not looked upon as a penal law.
Punish, however, it must. A penal law, in one sense of the word, it must be, if it is to have any effect at all in preventing the practice which is productive of the mischief it means to cure; and it is by punishing that it does more good than by indemnifying. For of the two ends, prevention and compensation, the former, as has been proved, is by much the most important.
This neglect, however, of the principal end of laws made in restraint of private injuries, has not been attended with all the ill consequences that might at first sight be imagined. The indemnification being made to come out of the pocket of the aggressor, has produced the punishment of course. Now, under the laws of most nations, in most instances of acknowledged injuries, indemnification has been exacted, and by that means, in most cases, it has happened that punishment has been applied. Yet not in all; because compensation has been made defeasible by contingencies: I say in most, but it has not in all; for there are two events by which in all these cases indemnification is rendered not necessary in so great a degree as it was before, and, as it may appear upon a superficial glance, not necessary at all. In effect, upon the happening of either of these two events, under most laws, and particularly under our own, the obligation of making compensation has been cancelled. At the same time, compensation being the only object in view, this being taken away, punishment has of course dropped along with it. But in these cases, as I hope soon to make appear, howsoever it may stand with compensation, the demand for punishment has not been lessened by either of the events in question.
These are—1st, The death of the injurer; 2dly, The death of the party injured.
1. The death of the injurer has been deemed to take away the occasion for indemnification. The reason that occurs is, that there is nobody to give it. Had he continued alive, he ought to have given it, doubtless; but as he is gone, who ought then? why one person rather than another?
To answer these questions at large, we must make a distinction according to the nature of the offence. The offence is either attended with a transferable profit, a fruit transmissible to the representatives of the offender, or not. In the first case, the obligation of making compensation ought clearly to devolve on the representative, on the score of punishment, if on no other. In the latter case, there would still be one use in its being made to devolve on the representative, as far as the possessions he inherits from the party deceased extend, though not so great a use as in the former case.
Where the profit of a transgression is transmissible to a representative, the obligation of restoring the amount of it ought likewise to devolve on him: if not, the punishment would not, in the case in question, be equal to the profit; in fact, there would be no punishment at all, no motive for the party under temptation to abstain from it. It may occur for the first moment (but it will soon appear to be otherwise) that neither will there in contemplation of this case be any temptation; for if the injurer thinks himself about to die, there will be an end of the profit of the injury. But this is not the case: should he be made to lose it ever so soon himself, he may transmit it to those who are dear to him, so that the pleasure of sympathy, grounded on the contemplation of their enjoyment, is a clear force that acts without controul, and impels him to transgression. Besides this, the delays and uncertainty of justice add still to the force of the temptation. If he can contrive to spin out the suit so long as he lives, the whole business, from beginning to end, is clear gain to him.
2. Even though the profit of a transgression be not of such a nature as to be transmissible to a representative, there seems still to be a reason why the obligation of making amends ought to devolve on the representatives, as far as they have assets.* Such an arrangement would be eligible, as well on account of punishment as of compensation:
On account of compensation, for the following reasons: The mischief of the transgression is a burthen that must be borne by somebody: the representative and the party injured are equally innocent in this respect—they stand upon a par; but the representative would suffer less under the same burthen than the party injured, as we shall presently perceive. From the moment when the injury was conceived, the party injured, in virtue of the known disposition of the law in his favour, entertained expectations of receiving amends. If these expectations are disappointed by a sudden and unforeseen event, like that of the delinquent’s death, a shock is felt by the party injured, such as he would feel at the sudden loss of anything of which he was in possession. The eventual representative entertained no such determinate expectations: what expectation he could entertain in the lifetime of his predecessor, respected only the clear surplus of his fortune—what should remain of it after the deduction of all charges that might be brought upon it by his misfortunes, his follies, or his crimes.
On account of punishment, for the following reason: The punishment of the delinquent in his own person is a punishment which fails upon his death: the burthen thrown upon those who are dear to him, extends his punishment, as it were, beyond the grave. Their suffering, it is true, will, for the reasons above given, not be very considerable; but this is what the bulk of mankind are not apt to consider. It will be apt, therefore, in general, to appear to him in the light of punishment, and will contribute to impose a restraint on him in a case in which, otherwise, there would be none. Nor will this advantage, in point of punishment, be charged with that expense, which renders punishments in alienam personam generally ineligible; for when the burthen is made to rest on the representative who has assets, there is less suffering, as we have shown, upon the whole, than if it were to rest upon any other person.
The law of England on this head is full of absurdity and caprice. The following are the instances in which (the heir is permitted to enrich himself by the wrong-doing of his ancestor) a man is permitted to enrich his heir with the profit of his crimes:† By the wrongful taking and withholding of any kind of moveables, while, if it had been by only withholding money due, the heir must have refunded;—by the waste committed on immoveables, in which he has only a temporary interest;‡ —by selling to a prisoner for debt his liberty;—by embezzling property entrusted to him by will, though, if he had not broken any such confidence, but had intruded himself into the management of the dead man’s property without warrant, the heir must have refunded;—in short, by any kind of injurious proceeding, where the compensation, instead of being left to the discretion of a jury, is thought fit to be increased and liquidated by a positive regulation.
The death of the party injured is another event upon which the obligation of making amends is very commonly made to cease; but with full as little reason, it should seem, as in the former case. The death of the party in question is a contingency which does not at all lessen the demand there is for punishment. For compensation, indeed, the demand is not altogether so strong in this case, as in the former: the person who was the immediate object of the injury, entertained a prospect of reaping, in present, the whole profit of a compensation he expected to be adjudged to him: his representative did not, during the lifetime of the principal, entertain so fixed a prospect; he, however, entertained a full prospect of some compensation to be made to his principal; and he entertained a prospect of a part, at least, of that compensation devolving upon himself, subject to the contingencies to which his general expectations from the principal were exposed. This expectation is more than any one else was in a situation to entertain; so that there is a better reason why he should reap the profit of the punishment, than why any one else should.
The law of England has been more liberal in the remedies it has given to the heir of the party injured, than in those which it has given against the heir of a wrong-doer. It gives it to the heir in all cases, as it should seem, of injuries done to the property of the ancestor. It denies it, however, in the case of injuries to the person,* be they ever so atrocious; and, probably, in the case of injuries to the reputation. This omission leaves an open door to the most crying evils. Age and infirmity, which ought, if any difference be made, to receive a more signal protection from the law, than the opposite conditions of life, are exposed more particularly to oppression. The nearer a man is to his grave, the greater is the probability that he may be injured with impunity, since, if the prosecution can be staved off during his life, the remedy is gone.† The remedy, by a criminal prosecution, is but an inadequate succedaneum. It extends not to injuries done to the person through negligence, nor to all injuries to the reputation: it is defeasible by the arbitrary pleasure and irresponsible act of a servant of the crown: it operates only in the way of punishment, affording no compensation to the heir.
After so many instances where no satisfaction is exigible from the heir for transgressions by which he profits, no one will wonder to find him standing exempt from that obligation in the case of such injuries as, being inflicted commonly, not from rapacious, but merely vindictive motives, are not commonly attended with any pecuniary profit. Such are those done to the person, or to the reputation, or in the way of mere destruction to the property. So accordingly stands the law;‡ though there are none of them by which the injurer may not, in a multitude of cases, draw indirectly a pecuniary profit: for instance, in the case of a rivalry in manufactures, where one man destroys the manufactory of his more successful rival.
[* ]Any one who is at all conversant with anecdotes of notorious criminals must have observed, that nothing is more common in this country than for a man to be guilty of twenty, thirty, or forty thefts or robberies, before punishment overtakes him.
[† ]Mr. Bentham does not appear to have carried on his examination of this subject in respect to the other ends of punishment.—Ed.
[‡ ]Under the name of the fact, I would here include such and so many circumstances as are necessary to make the act in question come under the denomination of some crime.
[* ]Assets: Effects descending to them from the ancestor, and liable to alicnation.
[† ]In all these points, I depend upon the authority of Comyns’ Digest, I. 262, 263.
[‡ ]A person whom I know, having the immediate reversion of an estate, part in houses, part in land, rented the land of a person who had the life-interest in both. The life-owner letting the houses go to ruin, the reversionary, to indemnify himself, stopt the rent of the land. The lifeowner died without repairing the houses, as he was bound: the consequence was, that the reversioner (as he was advised, to his great surprise), though obliged to pay his rent, lost his remedy for the waste.
[* ]1 Comyns’ Dig. 261.
[† ]A man may be kept in gaol, and his fortune ruined by it; and if he die under the imprisonment, his family are without remedy. In some cases, the wrong-doer may not even be punishable by a criminal prosecution; or he may be maltreated in such a manner as to contract a lingering distemper, such as does not follow from the injurious treatment with sufficient speed and certainty to bring it within the crime of murder. If the prosecution can but be staved off till he die, his family are without remedy. Many years ago, a butcher was committed to Newgate, at a time when the gaol distemper was raging in that prison, upon a false and malicious charge of theft. He died there, leaving a large distressed family, who were altogether without remedy for this atrocious injury.
[‡ ]I rest still on the authority of Comyns, except in the case of injuries to reputation, in which I conclude from analogy, Comyns being silent.