The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• Chapter I: Of the Principle of Utility
• Chapter II: Of Principles Adverse to That of Utility
• Chapter III: Of the Four Sanctions Or Sources of Pain and Pleasure
• Chapter IV: Value of a Lot of Pleasure Or Pain, How to Be Measured
• Chapter V: Pleasures and Pains, Their Kinds
• Chapter VI: Of Circumstances Influencing Sensibility
• Chapter VII: Of Human Actions In General
• Chapter VIII: Of Intentionality
• Chapter IX: Of Consciousness
• Chapter X: Of Motives
• § 1. Different Senses of the Word Motive.1
• § 2. No Motives Either Constantly Good Or Constantly Bad.
• § 3. Catalogue of Motives Corresponding to That of Pleasures and Pains.
• § 4. Order of Pre-eminence Among Motives.
• § 5. Conflict Among Motives.
• Chapter XI: Of Human Dispositions In General
• Chapter XII: Of the Consequences of a Mischievous Act
• §1. Shapes In Which the Mischief of an Act May Show Itself.
• § 2. How Intentionality, &c. May Influence the Mischief of an Act.
• Chapter XIII: Cases Unmeet For Punishment
• § 1. General View of Cases Unmeet For Punishment.
• § 2. Cases In Which Punishment Is Groundless.
• § 3. Cases In Which Punishment Must Be Inefficacious
• § 3. Cases Where Punishment Is Unprofitable.
• § 3. Cases Where Punishment Is Needless.
• Chapter XIV: Of the Proportion Between Punishments and Offences
• Chapter XV: Of the Properties to Be Given to a Lot of Punishment
• Chapter Xvi (sections 1-2): Division of Offences1
• §1. Classes of Offences.
• § 2. Divisions and Sub-divisions.
• Chapter Xvi (sections 3-4): Division of Offences1 (continued)
• § 3. Genera of Class I.
• § 4. Advantages of the Present Method.
• § 5. Characters of the Five Classes
• Chapter XVII: Of the Limits of the Penal Branch of Jurisprudence
• § 1. Limits Between Private Ethics and the Art of Legislation.
• § 2. Jurisprudence, Its Branches.

§ 3. Cases where punishment is needless.

These are,

XVII. 1. Where the purpose of putting an end to the practice may be attained as effectually at a cheaper rate: by instruction, is for instance, as well as by terror: by informing the understanding, as well as by exercising an immediate influence on the will. This seems to be the case with respect to all those offenses which consist in the disseminating pernicious principles in matters of duty; of whatever kind the duty be; whether political, or moral, or religious. And this, whether such principles be disseminated under, or even without; a sincere persuasion of their being beneficial. I say, even without: for though in such a case it is not instruction that can prevent the writer from endeavouring to inculcate his principles, yet it may the readers from adopting them: without which, his endeavouring to inculcate them will do no harm. In such a case, the sovereign will commonly have little need to take an active part: if it be the interest of one individual to inculcate principles that are pernicious, it will as surely be the interest of other individuals to expose them. But if the sovereign must needs take a part in the controversy, the pen is the proper weapon to combat error with, not the sword.

Chapter XIV

OF THE PROPORTION BETWEEN PUNISHMENTS AND OFFENCES

I. We have seen that the general object of all laws is to prevent mischief; that is to say, when it is worth while; but that, where there are no other means of doing this than punishment, there are four cases in which it is not worth while.

II. When it is worth while, there are four subordinate designs or objects, which, in the course of his endeavours to compass, as far as may be, that one general object, a legislator, whose views are governed by the principle of utility, comes naturally to propose to himself.

III. 1. His first, most extensive, and most eligible object, is to prevent, in as far as it is possible, and worth while, all sorts of offenses whatsoever:81 in other words, so to manage, that no offense whatsoever may be committed.

IV. 2. But if a man must needs commit an offense of some kind or other, the next object is to induce him to commit an offense less mischievous, rather than one more mischievous: in other words, to choose always the least mischievous, of two offenses that will either of them suit his purpose.

V. 3. When a man has resolved upon a particular offense, the next object is to dispose him to do no more mischief than is necessary to his purpose: in other words, to do as little mischief as is consistent with the benefit he has in view.

VI. 4. The last object is, whatever the mischief be, which it is proposed to prevent, to prevent it at as cheap a rate as possible.

VII. Subservient to these four objects, or purposes, must be the rules or canons by which the proportion of punishments82 to offenses is to be governed.

VIII. Rule 1. The first object, it has been seen, is to prevent, in as far as it is worth while, all sorts of offenses; therefore,

The value of the punishment must not less in any case than what is sufficient to outweigh that of the profit83 of the offense.84

If it be, the offence (unless some other considerations, independent of the punishment should intervene and operate efficaciously in the character of tutelary motives85 ) will be sure to be to committed notwithstanding:86 the whole lot of punishment will be thrown away: it will be altogether inefficacious.87

IX. The above rule has been often objected to, on account of its seeming harshness: but this can only have happened for want of its being properly understood. The strength of the temptation, cæteris paribus, is as the profit of the offense: the quantum of the punishment must rise with the profit of the offense: cæteris paribus, it must therefore rise with the strength of the temptation. This there is no disputing. True it is, that the stronger the temptation, the less conclusive is the indication which the act of delinquency affords of the depravity of the offender's disposition.88 So far then as the absence of any aggravation, arising from extraordinary depravity of disposition, may operate, or at the utmost, so far as the presence of a ground of extenuation, resulting from the innocence or beneficence of the offender's disposition, can operate, the strength of the temptation may operate in abatement of the demand for punishment. But it can never operate so far as to indicate the propriety of making the punishment ineffectual, which it is sure to be when brought below the level of the apparent profit of the offense.

The partial benevolence which should prevail for the reduction of it below this level, would counteract as well those purposes which such a motive would actually have in view, as those more extensive purposes which benevolence ought to have in view: it would be cruelty not only to the public, but to the very persons in whose behalf it pleads: in its effects, I mean, however opposite in its intention. Cruelty to the public, that is cruelty to the innocent, by suffering them, for want of an adequate protection, to lie exposed to the mischief of the offense: cruelty even to the offender himself, by punishing him to no purpose, and without the chance of compassing that beneficial end, by which alone the introduction of the evil of punishment is to be justified.

X. Rule 2. But whether a given offence shall be prevented in a given degree by a given quantity of punishment, is never any thing better than a chance; for the purchasing of which, whatever punishment is employed, is so much expended into advance. However, for the sake of giving it the better chance of outweighing the profit of the offence,

The greater the mischief of the offense, the greater is the expense which it may be worth while to be at, in the way of punishment.89

XI. Rule 3. The next object is, to induce a man to choose always the least mischievous of two offenses; therefore,

Where two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less.90

XII. Rule 4. When a man has resolved upon a particular offense, the next object is, to induce him to do no more mischief than what is necessary for his purpose: therefore

The punishment should be adjusted in such manner to each particular offence, that for every part of the mischief there may be a motive to restrain the offender from giving birth to it.91

XIII. Rule 5. The last object is, whatever mischief is guarded against, to guard against it at as cheap a rate as possible: therefore

The punishment ought in no case to be more than what is necessary to bring it into conformity with the rules here given.

XIV. Rule 6. It is further to be observed, that owing to the different manners and degrees in which persons under different circumstances are affected by the same exciting cause, a punishment which is the same in name will not always either really produce, or even so much as appear to others to produce, in two different persons the same degree of pain: therefore

That the quantity actually indicted on each individual offender may correspond to the quantity intended for similar offenders in general, the several circumstances influencing sensibility ought always to be taken into account.92

XV. Of the above rules of proportion, the first four, we may perceive, serve to mark out limits on the side of diminution; the limits below which a punishment ought not to be diminished: the fifth the limits on the side of increase; the limits above which it ought not to be increased. The five first are calculated to serve as guides to the legislator: the sixth is calculated in some measure, indeed, to the same purpose; but principally for guiding the judge in his endeavors to conform, on both sides, to the intentions of the legislator.

XVI. Let us look back a little. The first rule, in order to render it more conveniently applicable to practice, may need perhaps to be a little more particularly unfolded. It is to be observed, then, that for the sake of accuracy, it was necessary, instead of the word quantity to make use of the less perspicuous term value. For the word quantity will not properly include the circumstances either of certainty or proximity: circumstances which, in estimating the value of a lot of pain or pleasure, must always be taken into the account.93 Now, on the one hand, a lot of punishment is a lot of pain; on the other hand, the profit of an offense is a lot of pleasure, or what is equivalent to it. But the profit of the offense is commonly more certain than the punishment, or, what comes to the same thing, appears so at least to the offender. It is at any rate commonly more immediate. It follows, therefore, that, in order to maintain its superiority over the profit of the offense, the punishment must have its value made up in some other way, in proportion to that whereby it falls short in the two points of certainty and proximity. Now there is no other way in which it can receive any addition to its value, but by receiving an addition in point of magnitude. Wherever then the value of the punishment falls short, either in point of certainty, or of proximity, of that of the profit of the offence, it must receive a proportionable addition in point of magnitude.94

XVII. Yet farther. To make sure of giving the value of the punishment the superiority over that of the offence, it may be necessary, in some cases, to take into account the profit not only of the individual offence to which the punishment is to be annexed, but also of such other offences of the same sort as the offender is likely to have already committed without detection. This random mode of calculation, severe as it is, it will be impossible to avoid having recourse to, in certain cases: in such, to wit, in which the profit is pecuniary, the chance of detection very small, and the obnoxious act of such a nature as indicates a habit: for example, in the case of frauds against the coin. If it be not recurred to, the practice of committing the offence will be sure to be, upon the balance of the account, a gainful practice. That being the case, the legislator will be absolutely sure of not being able to suppress it, and the whole punishment that is bestowed upon it will be thrown away. In a word (to keep to the same expressions we set out with) that whole quantity of punishment will be inefficacious.

XVIII. Rule 7. These things being considered, the three following rules may be laid down by way of supplement and explanation to Rule 1.

To enable the value of the punishment to outweigh that of the profit of the offense, it must be increased, in point of magnitude, in proportion as it falls short in point of certainty.

XIX. Rule 8. Punishment must be further increased in point of magnitude, in proportion as it falls short in point of proximity.

XX. Rule 9. Where the act is conclusively indicative of a habit, such an increase must be given to the punishment as may enable it to outweigh the profit not only of the individual offence, but of such other like offenses as are likely to have been committed with impunity by the same offender.

XXI. There may be a few other circumstances or considerations which may influence, in some small degree, the demand for punishment: but as the propriety of these is either not so demonstrable, or not so constant, or the application of them not so determinate, as that of the foregoing, it may be doubted whether they be worth putting on a level with the others.

XXII. Rule 10. When a punishment, which in point of quality is particularly well calculated to answer its intention, cannot exist in less than a certain quantity, it may sometimes be of use, for the sake of employing it, to stretch a little beyond that quantity which, on other accounts, would be strictly necessary.

XXIII. Rule 11. In particular, this may sometimes be the case, where the punishment proposed is of such a nature as to be particularly well calculated to answer the purpose of a moral lesson.95

XXIV. Rule 12. The tendency of the above considerations is to dictate an augmentation in the punishment: the following rule operates in the way of diminution. There are certain cases (it has been seen96 ) in which, by the influence of accidental circumstances, punishment may be rendered unprofitable in the whole: in the same cases it may chance to be rendered unprofitable as to a part only. Accordingly,

In adjusting the quantum of punishment, the circumstances, by which all punishment may be rendered unprofitable, ought to be attended to.

XXV. Rule 13. It is to be observed, that the more various and minute any set of provisions are, the greater the chance is that any given article in them will not be borne in mind: without which, no benefit can ensue from it. Distinctions, which are more complex than what the conceptions of those whose conduct it is designed to influence can take in, will even be worse than useless. The whole system will present a confused appearance: and thus the effect, not only of the proportions established by the articles in question, but of whatever is connected with them, will be destroyed.97 To draw a precise line of direction in such case seems impossible. However, by way of memento, it may be of some use to subjoin the following rule.

Among provisions designed to perfect the proportion between punishments and offences, if any occur, which, by their own particular good effects, would not make up for the harm they would do by adding to the intricacy of the Code, they should be omitted.98

XXVI. It may be remembered, that the political sanction, being that to which the sort of punishment belongs, which in this chapter is all along in view, is but one of four sanctions, which may all of them contribute their share towards producing the same effects. It may be expected, therefore, that in adjusting the quantity of political punishment, allowance should be made for the assistance it may meet with from those other controlling powers. True it is, that from each of these several sources a very powerful assistance may sometimes be derived. But the case is, that (setting aside the moral sanction, in the case where the force of it is expressly adopted into and modified by the political99 ) the force of those other powers is never determinate enough to be depended upon. It can never be reduced, like political punishment, into exact lots, nor meted out in number, quantity, and value. The legislator is therefore obliged to provide the full complement of punishment, as if he were sure of not receiving any assistance whatever from any of those quarters. If he does, so much the better: but lest he should not, it is necessary he should, at all events, make that provision which depends upon himself.

XXVII. It may be of use, in this place, to recapitulate the several circumstances, which, in establishing the proportion betwixt punishments and offenses, are to be attended to. These seem to be as follows:

I. On the part of the offence:

• 1. The profit of the offense;
• 2. The mischief of the offense;
• 3. The profit and mischief of other greater or lesser offences, of different sorts, which the offender may have to choose out of;
• 4. The profit and mischief of other offenses, of the same sort, which the same offender may probably have been guilty of already.

II. On the part of the punishment:

• 5. The magnitude of the punishment: composed of its intensity and duration;
• 6. The deficiency of the punishment in point of certainty;
• 7. The deficiency of the punishment in point of proximity;
• 8. The quality of the punishment;
• 9. The accidental advantage in point of quality of a punishment, not strictly needed in point of quantity;
• 10. The use of a punishment of a particular quality, in the character of a moral lesson.

III. On the part of the offender:

• 11. The responsibility of the class of persons in a way to offend;
• 12. The sensibility of each particular offender;
• 13. The particular merits or useful qualities of any particular offender, in case of a punishment which might deprive the community of the benefit of them;
• 14. The multitude of offenders on any particular occasion.

IV. On the part of the public, at any particular conjuncture:

• 15. The inclinations of the people, for or against any quantity or mode of punishment;
• 16. The inclinations of foreign powers.

V. On the part of the law: that is, of the public for a continuance:

• 17. The necessity of making small sacrifices, in point of proportionality, for the sake of simplicity.

XXVIII. There are some, perhaps, who, at first sight, may look upon the nicety employed in the adjustment of such rules, as so much labour lost: for gross ignorance, they will say, never, troubles itself about laws, and passion does not calculate. But, the evil of ignorance admits of cure:100 and as to the proposition that passion does not calculate, this, like most of these very general and oracular propositions, is not true. When matters of such importance as pain and pleasure are at stake, and these in the highest degree (the only matters, in short, that can be of importance) who is there that does not calculate? Men calculate, some with less exactness, indeed, some with more: but all men calculate. I would not say, that even a madman does not calculate.101 Passion calculates, more or less, in every man: in different men, according to the warmth or coolness of their dispositions: according to the firmness or irritability of their minds: according to the nature of the motives by which they are acted upon. Happily, of all passions, that is the most given to calculation, from the excesses of which, by reason of its strength, constancy, and universality, society has most to apprehend:102 I mean that which corresponds to the motive of pecuniary interest: so that these niceties, if such they are to be called, have the best chance of being efficacious, where efficacy is of the most importance.

Chapter XV

OF THE PROPERTIES TO BE GIVEN TO A LOT OF PUNISHMENT

I. It has been shown what the rules are, which ought to be observed in adjusting the proportion between the punishments and the offense. The properties to be given to a lot of punishment, in every instance, will of course be such as it stands in need of, in order to be capable of being applied, in conformity to those rules: the quality will be regulated by the quantity.

II. The first of those rules, we may remember, was, that the quantity of punishment must not be less, in any case, than what is sufficient to outweigh the profit of the offence: since, as often as it is less, the whole lot (unless by accident the deficiency should be supplied from some of the other sanctions) is thrown away: it is inefficacious. The fifth was, that the punishment ought in no case to be more than what is required by the several other rules: since, if it be, all that is above that quantity is needless. The fourth was, that the punishment should be adjusted in such manner to each individual offence, that every part of the mischief of that offence may have a penalty (that is, a tutelary motive) to encounter it: otherwise, with respect to so much of the offense as has not a penalty to correspond to it, it is as if there were no punishment in the case. Now to none of those rules can a lot of punishment be conformable, unless, for every variation in point of quantity, in the mischief of the species of offense to which it is annexed, such lot of punishment admits of a correspondent variation. To prove this, let the profit of the offence admit of a multitude of degrees. Suppose it, then, at any one of these degrees: if the punishment be less than what is suitable to that degree, it will be inefficacious; it will be so much thrown away: if it be more, as far as the difference extends, it will be needless; it will therefore be thrown away also in that case.

The first property, therefore, that ought to be given to a lot of punishment, is that of being variable in point of quantity, in conformity to every variation which can take place in either the profit or mischief of the offense. This property might, perhaps, be termed, in a single word, variability.

III. A second property, intimately connected with the former, may be styled equability. It will avail but little, that a mode of punishment (proper in all other respects) has been established by the legislator; and that capable of being screwed up or let down to any degree that can be required; if, after all, whatever degree of it be pitched upon, that same degree shall be liable, according to circumstances, to produce a very heavy degree of pain, or a very slight one, or even none at all. In this case, as in the former, if circumstances happen one way, there will be a great deal of pain produced which will be needless: if the other way, there will be no pain at all applied, or none that will be efficacious. A punishment, when liable to this irregularity, may be styled an unequable one: when free from it, an equable one. The quantity of pain produced by the punishment will, it is true, depend in a considerable degree upon circumstances distinct from the nature of the punishment itself: upon the condition which the offender is in, with respect to the circumstances by which a man's sensibility is liable to be influenced. But the influence of these very circumstances will in many cases be reciprocally influenced by the nature of the punishment: in other words, the pain which is produced by any mode of punishment, will be the joint effect of the punishment which is applied to him, and the circumstances in which he is exposed to it. Now there are some punishments, of which the effect may be liable to undergo a greater alteration by the influence of such foreign circumstances, than the effect of other punishments is liable to undergo. So far, then, as this is the case, equability or unequability may be regarded as properties belonging to the punishment itself.

IV. An example of a mode of punishment which is apt to be unequable, is that of banishment, when the locus a quo (or place the party is banished from) is some determinate place appointed by the law, which perhaps the offender cares not whether he ever see or no. This is also the case with pecuniary, or quasi-pecuniary punishment, when it respects some particular species of property, which the offender may have been possessed of, or not, as it may happen. All these punishments may be split down into parcels, and measured out with the utmost nicety: being divisible by time, at least, if by nothing else. They are not, therefore, any of them defective in point of variability: and yet, in many cases, this defect in point of equability may make them as unfit for use as if they were.103

V. The third rule of proportion was, that where two offenses come in competition, the punishment for the greater offenses must be sufficient to induce a man to prefer the less. Now, to be sufficient for this purpose, it must be evidently and uniformly greater: greater, not in the eyes of some men only, but of all men who are liable to be in a situation to take their choice between the two offenses; that is, in effect, of all mankind. In other words, the two punishments must be perfectly commensurable. Hence arises a third property, which may be termed commensurability: to wit, with reference to other punishments.104

VI. But punishments of different kinds are in very few instances uniformly greater one than another; especially when the lowest degrees of that which is ordinarily the greater, are compared with the highest degrees of that which is ordinarily the less: in other words, punishments of different kinds are in few instances uniformly commensurable. The only certain and universal means of making two lots of punishment perfectly commensurable, is by making the lesser an ingredient in the composition of the greater. This may be done in either of two ways. 1. By adding to the lesser punishment another quantity of punishment of the same kind. 2. By adding to it another quantity of a different kind. The latter mode is not less certain than the former: for though one cannot always be absolutely sure, that to the same person a given punishment will appear greater than another given punishment; yet one may be always absolutely sure, that any given punishment, so as it does but come into contemplation, will appear greater than none at all.

VII. Again: Punishment cannot act any farther than in as far as the idea of it, and of its connection with the offense, is present in the mind. The idea of it, if not present, cannot act at all; and then the punishment itself must be inefficacious. Now, to be present, it must be remembered, and to be remembered it must have been learnt. But of all punishments that can be imagined, there are none of which the connection with the offense is either so easily learnt, or so efficaciously remembered, as those of which the idea is already in part associated with some part of the idea of the offense: which is the case when the one and the other have some circumstance that belongs to them in common. When this is the case with a punishment and an offense, the punishment is said to bear an analogy to, or to be characteristic of, the offence.105Characteristicalness is, therefore, a fourth property, which on this account ought to be given, whenever it can conveniently be given, to a lot of punishment.

VIII. It is obvious, that the effect of this contrivance will be the greater, as the analogy is the closer. The analogy will be the closer, the more material106 that circumstance is, which is in common. Now the most material circumstance that can belong to an offense and a punishment in common, is the hurt or damage which they produce. The closest analogy, therefore, that can subsist between an offense and the punishment annexed to it, is that which subsists between them when the hurt or damage they produce is of the same nature: in other words, that which is constituted by the circumstance of identity in point of damage.107 Accordingly, the mode of punishment, which of all others bears the closest analogy to the offense, is that which in the proper and exact sense of the word is termed retaliation. Retaliation, therefore, in the few cases in which it is practicable, and not too expensive, will have one great advantage over every other mode of punishment.

IX. Again: It is the idea only of the punishment (or, in other words, the apparent punishment) that really acts upon the mind; the punishment itself (the real punishment) acts not any farther than as giving rise to that idea. It is the apparent punishment, therefore, that does all the service, I mean in the way of example, which is the principal object.108 It is the real punishment that does all the mischief.109 Now the ordinary and obvious way of increasing the magnitude of the apparent punishment, is by increasing the magnitude of the real. The apparent magnitude, however, may to a certain degree be increased by other less expensive means: whenever, therefore, at the same time that these less expensive means would have answered that purpose, an additional real punishment is employed, this additional real punishment is needless. As to these less expensive means, they consist, 1. In the choice of a particular mode of punishment, a punishment of a particular quality, independent of the quantity.110 2. In a particular set of solemnities distinct from the punishment itself, and accompanying the execution of it.111

X. A mode of punishment, according as the appearance of it bears a greater proportion to the reality, may be said to be the more exemplary. Now as to what concerns the choice of the punishment itself, there is not any means by which a given quantity of punishment can be rendered more exemplary, than by choosing it of such a sort as shall bear an analogy to the offense. Hence another reason for rendering the punishment analogous to, or in other words characteristic of, the offense.

XI. Punishment, it is still to be remembered, is in itself an expense: it is in itself an evil.112 Accordingly the fifth rule of proportion is, not to produce more of it than what is demanded by the other rules. But this is the case as often as any particle of pain is produced, which contributes nothing to the effect proposed. Now if any mode of punishment is more apt than another to produce any such superfluous and needless pain, it may be styled unfrugal; if less, it may be styled frugal.Frugality, therefore, is a sixth property to be wished for in a mode of punishment.

XII. The perfection of frugality, in a mode of punishment, is where not only no superfluous pain is produced on the part of the person punished, but even that same operation, by which he is subjected to pain, is made to answer the purpose of producing pleasure on the part of some other person. Understand a profit or stock of pleasure of the self-regarding kind: for a pleasure of the dissocial kind is produced almost of course, on the part of all persons in whose breasts the offence has excited the sentiment of ill-will. Now this is the case with pecuniary punishment, as also with such punishments of the quasi-pecuniary kind as consist in the subtraction of such a species of possession as is transferable from one party to another. The pleasure, indeed, produced by such an operation, is not in general equal to the pain:113 it may, however, be so in particular circumstances, as where he, from whom the thing is taken, is very rich, and he, to whom it is given, very poor: and, be it what it will, it is always so much more than can be produced by any other mode of punishment.

XIII. The properties of exemplarity and frugality seem to pursue the same immediate end, though by different courses. Both are occupied in diminishing the ratio of the real suffering to the apparent: but exemplarity tends to increase the apparent; frugality to reduce the real.

XIV. Thus much concerning the properties to be given to punishments in general, to whatsoever offenses they are to be applied. Those which follow are of less importance, either as referring only to certain offenses in particular, or depending upon the influence of transitory and local circumstances.

In the first place, the four distinct ends into which the main and general end of punishment is divisible,114 may give rise to so many distinct properties, according as any particular mode of punishment appear to be more particularly adapted to the compassing of one or of another of those ends. To that of example, as being the principal one, a particular property has already been adapted. There remains the three inferior ones of reformation, disablement, and compensation.

XV. A seventh property, therefore, to be wished for in a mode of punishment, is that of subserviency to reformation, or reforming tendency. Now any punishment is subservient to reformation in proportion to its quantity: since the greater the punishment a man has experienced, the stronger is the tendency it has to create in him an aversion towards the offense which was the cause of it: and that with respect to all offenses alike. But there are certain punishments which, with regard to certain offenses, have a particular tendency to produce that effect by reason of their quality: and where this is the case, the punishments in question, as applied to the offenses in question, will pro tanto have the advantage over all others. This influence will depend upon the nature of the motive which is the cause of the offence: the punishment most subservient to reformation will be the sort of punishment that is best calculated to invalidate the force of that motive.

XVI. Thus, in offenses originating from the motive of ill-will,115 that punishment has the strongest reforming tendency, which is best calculated to weaken the force of the irascible affections. And more particularly, in that sort of offense which consists in an obstinate refusal, on the part of the offender, to do something which is lawfully required of him,116 and in which the obstinacy is in great measure kept up by his resentment against those who have an interest in forcing him to compliance, the most efficacious punishment seems to be that of confinement to spare diet.

XVII. Thus, also, in offenses which owe their birth to the joint influence of indolence and pecuniary interest, that punishment seems to possess the strongest reforming tendency, which is best calculated to weaken the force of the former of those dispositions. And more particularly, in the cases of theft, embezzlement, and every species of defraudment, the mode of punishment best adapted to this purpose seems, in most cases, to be that of penal labour.

XVIII. An eighth property to be given to a lot of punishment in certain cases, is that of efficacy with respect to disablement, or, as it might be styled more briefly, disabling efficacy. This is a property which may be given in perfection to a lot of punishment; and that with much greater certainty than the property of subserviency to reformation. The inconvenience is, that this property is apt, in general, to run counter to that of frugality: there being, in most cases, no certain way of disabling a man from doing mischief, without, at the same time, disabling him, in a great measure, from doing good, either to himself or others. The mischief therefore of the offense must be so great as to demand a very considerable lot of punishment, for the purpose of example, before it can warrant the application of a punishment equal to that which is necessary for the purpose of disablement.

XIX. The punishment, of which the efficacy in this way is the greatest, is evidently that of death. In this case the efficacy of it is certain. This accordingly is the punishment peculiarly adapted to those cases in which the name of the offender, so long as he lives, may be sufficient to keep a whole nation in a flame. This will now and then be the case with competitors for the sovereignty, and leaders of the factions in civil wars: though, when applied to offenses of so questionable a nature, in which the question concerning criminality turns more upon success than any thing else; an infliction of this sort may seem more to savour of hostility than punishment. At the same time this punishment, it is evident, is in an eminent degree unfrugal; which forms one among the many objections there are against the use of it, in any but very extraordinary cases.117

XX. In ordinary cases the purpose may be sufficiently answered by one or other of the various kinds of confinement and banishment: of which, imprisonment is the most strict and efficacious. For when an offense is so circumstanced that it cannot be committed but in a certain place, as is the case, for the most part, with offenses against the person, all the law has to do, in order to disable the offender from committing it, is to prevent his being in that place. In any of the offenses which consist in the breach or the abuse of any kind of trust, the purpose may be compassed at a still cheaper rate, merely by forfeiture of the trust: and in general, in any of those offenses which can only be committed under favour of some relation in which the offender stands with reference to any person, or sets of persons, merely by forfeiture of that relation: that is, of the right of continuing to reap the advantages belonging to it. This is the case, for instance, with any of those offences which consist in an abuse of the privileges of marriage, or of the liberty of carrying on any lucrative or other occupation.

XXI. The ninth property is that of subserviency to compensation. This property of punishment, if it be vindictive compensation that is in view, will, with little variation, be in proportion to the quantity: if lucrative, it is the peculiar and characteristic property of pecuniary punishment.

XXII. In the rear of all these properties may be introduced that of popularity; a very fleeting and indeterminate kind of property, which may belong to a lot of punishment one moment, and be lost by it the next. By popularity is meant the property of being acceptable, or rather not unacceptable, to the bulk of the people, among whom it is proposed to be established. In strictness of speech, it should rather be called absence of unpopularity: for it cannot be expected, in regard to such a matter as punishment, that any species or lot of it should be positively acceptable and grateful to the people: it is sufficient, for the most part, if they have no decided aversion to the thoughts of it. Now the property of characteristicalness, above noticed, seems to go as far towards conciliating the approbation of the people to a mode of punishment, as any; insomuch that popularity may be regarded as a kind of secondary quality, depending upon that of characteristicalness.118 The use of inserting this property in the catalogue, is chiefly to make it serve by way of memento to the legislator not to introduce, without a cogent necessity, any mode or lot of punishment, towards which he happens to perceive any violent aversion entertained by the body of the people.

XXIII. The effects of unpopularity in a mode of punishment are analogous to those of unfrugality. The unnecessary pain which denominates a punishment unfrugal, is most apt to be that which is produced on the part of the offender. A portion of superfluous pain is in like manner produced when the punishment is unpopular: but in this case it is produced on the part of persons altogether innocent, the people at large. This is already one mischief; and another is, the weakness which it is apt to introduce into the law. When the people are satisfied with the law, they voluntarily lend their assistance in the execution: when they are dissatisfied, they will naturally withhold that assistance; it is well if they do not take a positive part in raising impediments. This contributes greatly to the uncertainty of the punishment; by which, in the first instance, the frequency of the offense receives an increase. In process of time that deficiency, as usual, is apt to draw on an increase in magnitude: an addition of a certain quantity which otherwise would be needless.119

XXIV. This property, it is to be observed, necessarily supposes, on the part of the people, some prejudice or other, which it is the business of the legislator to endeavour to correct. For if the aversion to the punishment in question were grounded on, the principle of utility, the punishment would be such as, on other accounts, ought not to be employed: in which case its popularity or unpopularity would never be worth drawing into question. It is properly therefore a property not so much of the punishment as of the people: a disposition to entertain an unreasonable dislike against an object which merits their approbation. It is the sign also of another property, to wit. indolence or weakness, on the part of the legislator: in suffering the people for the want of some instruction, which ought to be and might be given them, to quarrel with their own interest. Be this as it may, so long as any such dissatisfaction subsists, it behoves the legislator to have an eye to it, as much as if it were ever so well grounded. Every nation is liable to have its prejudices and its caprices which it is the business of the legislator to look out for, to study, and to cure.120

XXV. The eleventh and last of all the properties that seem to be requisite in a lot of punishment, is that of remissibility.121 The general presumption is, that when punishment is applied, punishment is needful: that it ought to be applied, and therefore cannot want to be remitted. But in very particular, and those always very deplorable cases, it may by accident happen otherwise. It may happen that punishment shall have been inflicted, where, according to the intention of the law itself, it ought not to have been inflicted: that is, where the sufferer is innocent of the offense. At the time of the sentence passed he appeared guilty: but since then, accident has brought his innocence to light. This being the case, so much of the destined punishment as he has suffered already, there is no help for. The business is then to free him from as much as is yet to come. But is there any yet to come? There is very little chance of there being any, unless it be so much as consists of chronical punishment: such as imprisonment, banishment, penal labour, and the like. So much as consists of acute punishment, to wit where the penal process itself is over presently, however permanent the punishment may be in its effects, may be considered as irremissible. This is the case, for example, with whipping, branding, mutilation, and capital punishment. The most perfectly irremissible of any is capital punishment. For though other punishments cannot, when they are over, be remitted, they may be compensated for; and although the unfortunate victim cannot be put into the same condition, yet possibly means may be found of putting him into as good a condition, as he would have been in if he had never suffered. This may in general be done very effectually where the punishment has been no other than pecuniary.

There is another case in which the property of remissibility may appear to be of use: this is, where, although the offender has been justly punished, yet on account of some good behaviour of his, displayed at a time subsequent to that of the commencement of the punishment, it may seem expedient to remit a part of it. But this it can scarcely be, if the proportion of the punishment is, in other respects, what it ought to be. The purpose of example is the more important object, in comparison of that of reformation.122 It is not very likely, that less punishment should be required for the former purpose than for the latter. For it must be rather an extraordinary case, if a punishment, which is sufficient to deter a man who has only thought of it for a few moments, should not be sufficient to deter a man who has been feeling it all the time. Whatever, then, is required for the purpose of example, must abide at all events: it is not any reformation on the part of the offender, that can warrant the remitting of any part of it: if it could, a man would have nothing to do but to reform immediately, and so free himself from the greatest part of that punishment which was deemed necessary. In order, then, to warrant the remitting of any part of a punishment upon this ground, it must first be supposed that the punishment at first appointed was more than was necessary for the purpose of example, and consequently that a part of it was needless upon the whole. This, indeed, is apt enough to be the case, under the imperfect systems that are as yet on foot: and therefore, during the continuance of those systems, the property of remissibility may, on this second ground likewise, as well as on the former, be deemed a useful one. But this would not be the case in any new-constructed system, in which the rules of proportion above laid down should be observed. In such a system, therefore, the utility of this property would rest solely on the former ground.

XXVI. Upon taking a survey of the various possible modes of punishment, it will appear evidently, that there is not any one of them that possesses all the above properties in perfection. To do the best that can be done in the way of punishment, it will therefore be necessary, upon most occasions, to compound them, and make them into complex lots, each consisting of a number of different modes of punishment put together: the nature and proportions of the constituent parts of each lot being different, according to the nature of the offence which it is designed to combat.

XXVII. It may not be amiss to bring together, and exhibit in one view, the eleven properties above established. They are as follows:

Two of them are concerned in establishing a proper proportion between a single offense and its punishment; viz.

• 1. Variability.
• 2. Equability.

One, in establishing a proportion, between more offences than one, and more punishments than one; viz.

• 3. Commensurability.

A fourth contributes to place the punishment in that situation in which alone it can be efficacious; and at the same time to be bestowing on it the two farther properties of exemplarity and popularity; viz.

• 4. Characteristicalness.

Two others are concerned in excluding all useless punishment; the one indirectly, by heightening the efficacy of what is useful; the other in a direct way; viz.

• 5. Exemplarity.
• 6. Frugality.

Three others contribute severally to the three inferior ends of punishment; viz.

• 7. Subserviency to reformation.
• 8. Efficacy in disabling.
• 9. Subserviency to compensation.

Another property tends to exclude a collateral mischief, which a particular mode of punishment is liable accidentally to produce; viz.

• 10. Popularity.

The remaining property tends to palliate a mischief, which all punishment, as such is liable accidentally to produce; viz.

• 11. Remissibility.

The properties of commensurability, characteristicalness, exemplarity, subserviency to reformation, and efficacy in disabling, are more particularly calculated to augment the profit which is to be made by punishment: frugality, subserviency to compensation, popularity, and remissibility, to diminish the expense: variability and equability are alike subservient to both those purposes.

XXVIII. We now come to take a general survey of the system of offences: that is, of such acts to which, on account of the mischievous consequences they have a natural tendency to produce, and in the view of putting a stop to those consequences, it may be proper to annex a certain artificial consequence, consisting of punishment, to be inflicted on the authors of such acts according to the principles just established.

Chapter XVI (Sections 1-2)

DIVISION OF OFFENCES1

[81.]By offences I mean, at present, acts which appear to him to have a tendency to produce mischief.

[82.]The same rules (it is to be observed) may be applied, with little variation, to rewards as well as punishment: in short, to motives in general, which, according as they are of the pleasurable or painful kind, are of the nature of reward or punishment: and, according as the act they are applied to produce is of the positive or negative kind, are styled impelling or restraining. See ch. x. [Motives] xliii.

[83.]By the profit of an offense, is to be understood, not merely the pecuniary profit, but the pleasure or advantage, of whatever kind it be, which as a man reaps, or expects to reap, from the gratification of the desire which prompted him to engage in the offense.*

It is the profit (that is, the expectation of the profit) of the offence that constitutes the impelling motive, or, where there are several, the sum of the impelling motives, by which a man is prompted to engage in the offense. It is the punishment, that is, the expectation of the punishment, that constitutes the restraining motive, which, either by itself, or in conjunction with others, is to act upon him in a contrary direction, so as to induce him to abstain from engaging in the offense. Accidental circumstances apart, the strength of the temptation is as the force of the seducing, that is, of the impelling motive or motives. To say then, as authors of great merit and great name have said, that the punishment ought not to increase with the strength of the temptation, is as much as to say in mechanics, that the moving force or momentum of the power need not increase in proportion to the momentum of the burthen.

* See ch. x. [Motives] § 1.

[84.]Beccaria, dei diletti, § 6. id. trad. par. Morellet, § 23.

[85.]See ch. xi. [Dispositions] xxix.

[86.]It is a well-known adage, though it is to be hoped not a true one, that every man has his price. It is commonly meant of a man's virtue. This saying, though in a very different sense, was strictly verified by some of the Anglo-Saxon laws: by which a fixed price was set, not upon a man's virtue indeed, but upon his life: that of the sovereign himself among the rest. For 200 shillings you might have killed a peasant: for six times as much, a nobleman: for six-and-thirty times as much you might have killed the king.* A king in those days was worth exactly 7,200 shillings. If then the heir to the throne, for example, grew weary of waiting for it, he had a secure and legal way of gratifying his impatience: he had but to kill the king with one hand, and pay himself with the other, and all was right. An earl Godwin, or a duke Streon, could have bought the lives of a whole dynasty. It is plain, that if ever a king in those days died in his bed, he must have had something else, besides this law, to thank for it. This being the production of a remote and barbarous age, the absurdity of it is presently recognised: but, upon examination, it would be found, that the freshest laws of the most civilised nations are continually falling into the same error.** This, in short, is the ease wheresoever the punishment is fixed while the profit of delinquency is indefinite: or, to speak more precisely, where the punishment is limited to such a mark, that the profit of delinquency may reach beyond it.

* Wilkins Leg. Anglo-Sax. p, 71, 72. See Hume, Vol. 1. App. 1. p. 219.

** See in particular the English Statue laws throughout, Bonaparte's Penal Code, and the recently enacted or not enacted Spanish Penal Code.—Note by the Author, July 1822.

[87.]See ch. xiii. [Cases unmeet], § 1.

[88.]See ch. xi. [Dispositions], xlii.

[89.]For example, if it can ever be worth while to be at the expense of so horrible a punishment as that of burning alive, it will be more so in the view of preventing such a crime as that of murder or incendiarism, than in the view of preventing the uttering of a piece of bad money. See B. I. tit. [Defraudment touching the Coin] and [Incendiarism].

[90.]Espr. des Loix, L. vi. c. 16.

[91.]If any one have any doubt of this, let him conceive the offence to be divided into as many separate offenses as there are distinguishable parcels of mischief that result from it. Let it consist, for example, in a man's giving you ten blows, or stealing from you ten shillings. If then, for giving you ten blows, he is punished no more than for giving you five, the giving you five of these ten blows is an offense for which there is no punishment at all: which being understood, as often as a man gives you five blows, he will be sure to give you five more, since he may have the pleasure of giving you these five for nothing. In like manner, if for stealing from you ten shillings, he is punished no more than for stealing five, the stealing of the remaining five of those ten shillings is an offense for which there is no punishment at all. This rule is violated in almost every page of every body of laws I have ever seen.

The profit, it is to be observed, though frequently, is not constantly, proportioned to the mischief: for example, where a thief, along with the things he covets, steals others which are of no use to him. This may happen through wantonness, indolence, precipitation, &c. &c.

[92.]See ch. vi. [Sensibility].

[93.]See ch. iv. [Value].

[94.]It is for this reason, for example, that simple compensation is never looked upon as sufficient punishment for theft or robbery.

[95.]A punishment may be said to be calculated to answer the purpose of a moral lesson, when, by reason of the ignominy it stamps upon the offense, it is calculated to inspire the public with sentiments of aversion towards those pernicious habits and dispositions with which the offense appears to be connected; and thereby to inculcate the opposite beneficial habits and dispositions.

It is this, for example, if any thing, that must justify the application of so severe a punishment as the infamy of a public exhibition, hereinafter proposed, for him who lifts up his hand against a woman, or against his father. See B. I. tit. [Simp. corporal injuries].

It is partly on this principle, I suppose, that military legislators have justified to themselves the inflicting death on the soldier who lifts up his hand against his superior officer.

[96.]See ch. xiii. [Cases unmeet], § 4.

[97.]See B. II. tit. [Purposes], Append. tit. [Composition].

[98.]Notwithstanding this rule, my fear is, that in the ensuing model, I may be thought to have carried my endeavours at proportionality too far. Hitherto scarce any attention has been paid to it. Montesquieu seems to have been almost the first who has had the least idea of any such thing. In such a matter, therefore, excess seemed more eligible than defect. The difficulty is to invent: that done, if any thing seems superfluous, it is easy to retrench.

[99.]See B. I. tit. [Punishments].

[100.]See Append. tit. [Promulgation].

[101.]There are few madmen but what are observed to be afraid of the strait waistcoat.

[102.]See ch. xii. [Consequences], xxxiii.

[103.]By the English law, there are several offenses which are punished by a total forfeiture of moveables, not extending to immoveables. This is the case with suicide, and with certain species of theft and homicide. In some cases, this is the principal punishment: in others, even the only one. The consequence is, that if a man's fortune happens to consist in moveables, he is ruined; if in immoveables, he suffers nothing.

[104.]See View of the Hard-Labour Bill, Lond. 1778, p. 100.

For the idea of this property, I must acknowledge myself indebted to an anonymous letter in the St. James's Chronicle, of the 27th of September 1777; the author of which is totally unknown to me. If any one should be disposed to think lightly of the instruction, on recount of the channel by which it was first communicated, let him tell me where I can find an idea more ingenious or original.

[105.]See Montesq. Esp. des Loix, L. xii. ch. iv. He seems to have the property of characteristicalness in view; but that the idea he had of it was very indistinct, appears from the extravagant advantages he attributes to it.

[106.]See ch. vii. [Actions], iii.

[107.]Besides this, there are a variety of other ways in which the punishment may bear an analogy to the offence. This will be seen by looking over the table of punishments.

[108.]See ch. xiii. [Cases unmeet] § 1, 2. note.

[109.]Ib. § 4. par. iii.

[110.]See B. I. tit. [Punishments].

[111.]See B. II. tit. [Execution].

[112.]Ch. xiii. [Cases unmeet], par. iii.

[113.]Ib. note.

[114.]See ch. xiii. [Cases unmeet], par. ii. note.

[115.]See ch. x. [Motives].

[116.]See B. I. tit. [Offences against Justice].

[117.]See B. I. tit. [Punishments].

[118.]The property of characteristicalness, therefore, is useful in a mode of punishment in three different ways: 1. It renders a mode of punishment, before infliction, more easy to be borne in mind: 2. It enables it, especially after infliction, to make the stronger impression, when it is there; that is, renders it the more exemplary: 3. It tends to render it more acceptable to the people, that is, it renders it the more popular.

[119.]See ch. xiii. [Cases unmeet], § v.

[120.]See ch. xiii. [Cases unmeet], § iv. par. iv.

[121.]See View of the Hard Labour Bill, p. 109.

[122.]See ch. xiii. [Cases unmeet], ii. note.

[1.]This chapter is an attempt to put our ideas of offences into an exact method. The particular uses of method are various: but the general one is, to enable men to understand the things that are the subjects of it. To understand a thing, is to be acquainted with its qualities or properties. Of these properties, some are common to it with other things; the rest, peculiar. But the qualities which are peculiar to any one sort of thing are few indeed, in comparison with those which are common to it with other things. To make it known in respect of its difference, would therefore be doing little, unless it were made known also by its genus. To understand it perfectly, a man must therefore be informed of the points in which it agrees as well as of those in which it disagrees, with all other things. When a number of objects, composing a logical whole, are to be considered together all of these possessing with respect to one another a certain congruency or agreement denoted by a certain name, there is but one way of giving a perfect knowledge of their nature; and that is, by distributing them into a system of parcels, each of them a part, either of some other parcel, or, at any rate, of the common whole. This can only be done in the way of bipartition, dividing each superior branch into two, and but two, immediately subordinate ones; beginning with the logical whole, dividing that into two parts, then each of those parts into two others; and so on. These first-distinguished parts agree in respect of those properties which belong to the whole: they differ in respect of those properties which are peculiar to each. To divide the whole into more than two parcels at once, for example into three, would not answer the purpose; for, in fact, it is but two objects that the mind can compare together exactly at the same time. Thus then, let us endeavour to deal with offences; or rather, strictly speaking, with acts which possess such properties as seem to indicate them fit to be constituted offences. The task is arduous, and as yet at least, perhaps for ever, above our force. There is no speaking of objects but by their names: but the business of giving them names has always been prior to the true and perfect knowledge of their natures. Objects the most dissimilar have been spoken of and treated as if their properties were the same. Objects the most similar have been spoken of and treated as if they had scarce anything in common. Whatever discoveries may be made concerning them, how different soever their congruencies and disagreements may be found to be from those which are indicated by their names, it is not without the utmost difficulty that any means can be found out of expressing those discoveries by a conformable set of names. Change the import of the old names, and you are in perpetual danger of being misunderstood: introduce an entire new set of names, and you are sure not to be understood at all. Complete success then, is, as yet at least, unattainable. But an attempt, though imperfect, may have its use: and, at the worst, it may accelerate the arrival of that perfect system, the possession of which will be the happiness of some maturer age. Gross ignorance descries no difficulties; imperfect knowledge finds them out, and struggles with them: it must be perfect knowledge that overcomes them.