The g-eneral object which all laws have, or The end of ought to have, in common, is to augment the augment happiness.
total happiness of the community; and therefore, in the first place, to exclude, as far as may be, every thing that tends to subtract from that hap- piness: in other words, to exclude mischief.
II. But all punishment is mischief: all punishment Bat punishment is an in itself is evil. Upon the principle of utility, if evil. it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil *.
* What follows, relative to the subject of punishment What con- ought regularly to be preceded by a distinct chapter on the '^^"'^ 'H® ends of punishment. But having little to say on that par- veral other ticular branch of the subject, which has not been said before, jiyg to p^. it seemed better, in a work, which will at any rate be but "'shment, _ "" dismissed to too voluminous, to omit this title, reserving it for another, anothey hereafter to be published, intituled The Theory of Punish- '^°^^' VOL. II. B f ASKS UNMEET FOR PUNISHMENT.
III.
T^i^i^XIT^ ^* ^'^ plain, therefore, that in the following ZfLTted; ^^^^^ punishment ought not to be inflicted.
iiishment.
7nent *. To the same work I must refer the analysis of the several possible modes of punishment, a particular and mi- nute examination of the nature of each, and of its advantages and disadvantages, and various other disquisitions, which did not seem absolutely necessary to be inserted here. A very few words, however, concerning the ends of punishment, can scarcely be dispensed with. Concise "pj^g immediate principal end of punishment is to controul view of the r r r view of the r r r ends of pn- action. This action is either that of the offender, or of others: that of the offender it controuls by its influence, either on his will, in which case it is said to operate in the way of reformation; or on his physical power, in which case it is said to operate by disablement.- that of others it can in- fluence no otherwise than by its influence over their wills; in which case it is said to operate in the way of example. A kind of collateral end, which it has a natural tendency to answer, is that of affording a pleasure or satisfaction to the party injured, where there is one, and, in general, to parties whose ill-will, whether on a self- re gar ding account, or on the account of sympathy or antipathy, has been excited by the offence. This purpose, as far as it can be answered gratis, is a beneficial one. But no punishment ought to be allotted merely to this purpose, because (setting aside its effects in the way of controul) no such pleasure is ever produced by punishment as can be equivalent to the pain. The punish- • This is tiie work which, from the Author's papers, has since been pub- lished by Mr. Dumont in French, in company with The Theory of Reward added to it, for the purpose of mutual illustration. It is in contemplation to publish them both in English, from the Author's manuscripts, with the benefit of any amendments that have been made by Mr. Dumont.
CASES UNMEET FOR PUNISHMENT.
1. Where it is groundless; where there is no Cuap.
mischief for it to prevent; the act not bein^ mis-,"-->/ — ' chievdus upon the whole. groundless.
2. Where it must be inefficacious: where it 2. inefficacannot act so as to prevent the mischiei.
3. Where it is unprofitable, or too expensive; s- Unprowhere the mischief it would produce would be greater than what it prevented.
4. Where it is needless: where the mischief may 4. Or need- be prevented, or cease of itself, without it: that is, at a cheaper rate.
§. 2. Cases in which punishmetit is groundless. These are, IV.
1. Where there has never been any mischief: 1. where where no mischief has been produced to any body l^l^^j. been by the act in question. Of this number are those 2/" as in in which the act was such as might, on some ^^^^^^^^ °^ ment, however, which is allotted to the other purpose, ought, as far as it can be done without expence, to be accommo- dated to this. Satisfaction thus administered to a party in- jured, in the shape of a dissocial pleasure *, may be stiled a vindictive satisfaction or compensation: as a compensation, administered in the shape of a self-regarding profit, or stock of pleasure, may be stiled a lucrative one. See B. I. tit, vi. [Compensation.] Example is the most important end of all, in proportion as the number of the persons under temptation to offend is to one.
* See ch. x. [Motives.]
4 CASES UNMEET FOR PUNISHMENT.
Chap, occasions, be mischievous or disao-reeable, but the ' — V — ' person whose interest it concerns gave his consent to the performance of it *. This consent, pro- vided it be free, and fairly obtained *, is the best proof that can be produced, that, to the person who gives it, no mischief, at least no immediate mischief, upon the whole, is done. For no man can be so good a judge as the man himself, what it is gives him pleasure or displeasure.
v.
t. Where 2. Where the mischief was outweighed: alwas out- though a mischief was produced by that act, yet S^^precau-^^ the samc act was necessary to the production of a Samftyr* ^^1^^^^ which was of greater value f than the exerdseof ^ischief. This may be the case with any thing powers. ^^^ jg Jone in the way of precaution against instant calamity, as also with any thing that is done in the exercise of the several sorts of powers necessary to be established in every community, to wit, domestic, judicial, military, and supreme J.
VI.
3. —or will, 3. Where there is a certainty of an adequate tainty be Compensation: and that in all cases where the compeiiL offence can be committed. This supposes two things: 1. That the offence is such as admits of an adequate compensation: 2. That such a compensation is sure to be forthcoming. Of * See B. I. tit. [Justifications.] f See supra, ch. iv. [Value.] I See Book I. tit. [Justifications.]
tion.
CASES UNMEET FOR PUNISHMENT. o these suppositions, the latter will be found to be a ^hap. merely ideal one: a supposition that cannot, in "^ — -^ — ' the universality here given to it, be verified by fact. It cannot, therefore, in practice, be num- bered amongst the grounds of absolute impunity. It may, however, be admitted as a ground for an abatement of that punishment, which other considerations, standing by themselves, would seem to dictate*.
§ 3. Cases in which punishment must be inefficacious. These are, VII.
1. Where the penal provision is not established i. where until after the act is done. Such are the cases, provision 1. Of an ex-pQst-facto law; where the legislator late: as in, himself appoints not a punishment till after the post-jacto act is done. 2. Of a sentence beyond the law; dukiegai ° where the judge, of his own authority, appoints a *^"'^'°'^^- * This, for example, seems to have been one ground, at Hence the least, of the favour shewn by perhaps all systems of laws, to '^™"'' such offenders as stand upon a footing of responsibility: the offences shewn, not directly indeed to the persons themselves; but to bie'^offend-" such offences as none but responsible persons are likely to ^.'^ • s"ch as have the opportunity of engaging in. In particular, this cantile seems to be the reason why embezzlement, in certain cases, "'^^^^' has not commonly been punished upon the footing of theft: nor mercantile frauds upon that of common sharping f.
t Sec tit. [Simple mere. Defraud mcnt.]
CASES UNMEET FOR PUNISHMENT.
Chap, puiiisliment which the legislator had not ap- ' — V — ' pointed.
VIII.
2. Or is 2. Where the penal provision, thousrh estaknown: as blishcd, is Tiot convevcd to the notice of the person in a law not..
sufficiently on whom it secms intended that it should operate.
gated. Such is the case where the law has omitted to employ any of the expedients which are necessary, to make sure that every person whatsoever, who is within the reach of the law, be apprized of all the cases whatsoever, in which (being in the station of life he is in) he can be subjected to the penalties of the law *.
IX.
3. wiiere J. Where the penal provision, thouoli it were the Mill can-. ^ not be de- couvcycd to a mail's notice, could produce no efterred from...any act: as fcct ou him. With rcspect to the preventing him from engaging in any act of the sort in ques- [n] Infancy, tion. Such is the case, 1. In extreme infancy; where a man has not yet attained that state or disposition of mind in w^hich the prospect of evils so distant as those which are held forth by the [b] Insanity, law, lias tlic cfFcct of influencing his conduct. 2. In insanity; w^here the person, if he has attained to that disposition, has since been deprived of it through the influence of some permanent though [cjiutoxi unseen cause. 3. In intoiication; where he has been deprived of it by the transient influence of a * See B. IT. Appendix, tit. iii. [Promulgation.]
CASES UNMEET FOR PUNISHMENT.
nr nniiim XIII.
visible cause: such as the use of wine, or opium, ^J\y' or other drugs, that act in this manner on the ner- *■ — v — ' vous system: which condition is indeed neither more nor less than a temporary insanity produced by an assignable cause*.
X.
4. Where the penal provision (although, being 4 omot...from the inconveyed to the party's notice, it might very well dividual act prevent his engaging m acts oi the sort m ques- as in.
* Notwithstanding what is here said, the cases of infancy In infancy and intoxication (as we shall see hereafter) cannot be looked cation the upon in practice as affording sufficient grounds for absolute ^'"^^^ '^^'^ impunity. But this exception in point of practice is no ob- proved to jection to the propriety of the rule in point of theory. The ^'J^rulT''^' ground of the exception is neither more nor less than the difficulty there is of ascertaining the matter of fact: viz. whether at the requisite point of time the party was actually in the state in question; that is, whether a given case comes really under the rule. Suppose the matter of fact capable of being perfectly ascertained, without danger or mistake, the impropriety of punishment would be as indubitable in these cases as in any other f.
The reason that is commonly assigned for the establishing The reason an exemption from punishment in favour of infants, insane,|is|""* ^"" persons, and persons under intoxication, is either false in these three fact, or confusedly expressed. The phrase is, that the will monly put of these persons concurs not with the act; that they have "l^"" % ' •' wrong footno vicious will; or, that they have not the free use of their ing.
will. But suppose all this to be true? What is it to the purpose? Nothing: except in as far as it implies the reason given in the text.
t See B I. lit. iv. [Exemptions] and tit. vii. [Extenuations.]
CASES UNMEET FOR PUNISHMENT.
tion, provided lie knew that it related to those acts) could not have this effect, with regard to the individual act he is about to engage in: to wit, because he knows not that it is of the number of those to which the penal provision relates. This [a] Uninten- jYiay happen, 1. In the case of unintentionality; where he intends not to engage, and thereby knows not that he is about to engage, in the act in which eventually 'he is about to engage*.
[b] Uncon- o. In the case of unconsciousness; where, although he may know that he is about to engage m the act itself, yet, from not knowing all the material cir- cumstances attending it, he knows not of the tendency it has to produce that mischief, in con- templation of which it has been made penal in [c]Wis- most instances. 3. In the case oi 7Jiis-supposa I; supposa. ^.|^gj.g^ although he may know of the tendency the act has to produce that degree of mischief, he supposes it, though mistakenly, to be attended with some circumstance, or set of circumstances, which, if it had been attended with, it would either not have been productive of that mischief, or have been productive of such a greater degree of good, as has determined the legislator in such a case not to make it penal f.
XI.
5. Or is act- 5. Where, though the penal clause might exopposite su- ercise a full and prevailing miiuence, were it to perior force- as by, * See ch. viii. [Intentionality.] t See ch. ix. [Consciousness.]
CASES UNMEET FOR PUNISHMENT. ^ act alone, yet by the predominant influence of some Ch j^^* opposite cause upon the will, it must necessarily ' v ' be ineffectual; because the evil which he sets himself about to undergo, in the case of his not engaging in the act, is so great, that the evil denounced by the penal clause, in case of his engaging in it, cannot appear greater. This may happen, 1. In the case of physical danger; where [a] Physical the evil is such as appears likely to be brought about by the unassisted powers of nature. 2. In [b] Threat. the case of a threatened mischief; where it is such chief, as appears likely to be brought about through the intentional and conscious agency oiman^.
XII.
6. Where (though the penal clause may exert a 6- —or the full and prevailing influence over the will of the gans cannot party) yet his physical j acuities (owmg to the pre- termination: as under * The influences of the moral and religious sanctions, or, in Why the other words, of the motives of love of reputation and religion, t"ie"moral° are other causes, the force of which may, upon particular oc- a"«^ religicasions, come to be greater than that oi any punishment tions is not which the legislator is able, or at least which he will think ™<^^^*<^"^'l ° in the same proper, to apply. These, therefore, it will be proper for him view, to have his eye upon. But the force of these influences is variable and different in different times and places: the force of the foregoing influences is constant and the same, at all times and every where. These, therefore, it can never be proper to look upon as safe grounds for establishing absolute impunity: owing (as in the above-mentioned cases of infancy and intoxication) to the impracticability of ascertaining the matter of fact.
10 CASES UNMEET FOR PUNISHMENT.
CwAP. dominant influence of some physical cause) are not ' — V — ' in a condition to follow the determination of the will: insomuch that the act is absolutely irwolun- Physicai tavy. Such is the case of physical compulsioti or compulsion • -i i or restraint, restraint, by whatever means brought about; where the man's hand, for instance, is pushed against some object which his will disposes him not to touch; or tied down from touching some object which his will disposes him to touch.
§ 4. Cases where punishment is unprofitable. These are, XIII.
1. Where, 1. Whcrc, ou the one hand, the nature of the of case in ofFcnce, on the other hand, that of the punishment, the^pini.'h- are, in the ordinary state of things, such, that when producT"''^ compared together, the evil of the latter will turn S^^the'' °^^ ^^ ^^ greater than that of the former.
offence ytv would.
offence ytv would.
Eviiprodu- Now the evil of the punishment divides itself punibhnic^nt iuto four brauchcs, by which so many different branch""— scts of pcrsous are affected. 1. The e\dl of coer- ItraiS ^' cion or restraint: or the pain which it gives a man not to be able to do the act, whatever it be, which by the apprehension of the punishment he is deterred from doing. This is felt by those by [b] Appre- whom the law^ is obsei^ed. 2. The evil of appre- hension: or the pain which a man, who has exposed himself to punishment, feels at the thoughts of undergoing it. This is felt by those by whom hen^ion.
CASES UNMEET FOR PUNISHMENT. 11 the law has been broken, and who feel themselves Chap. in danger of its being executed upon them. 3. The r'TT^ff"^ evil oi sufferance'^: or the pain which a man feels, a°ce. in virtue of the punishment itself, from the time when he begins to undergo it. This is felt by those by whom the law is broken, and upon whom it comes actually to be executed. 4. The pain of [d] Demalive evils.
live evils.
sympathy, and the other derivative evils resulting to the persons who are in connection with the several classes of original sufferers just men- tioned f. Now of these four lots of evil, the first will be greater or less, according to the nature of the act from which the party is restrained: the second and third according to the nature of the punishment which stands annexed to that offence.
XV.
On the other hand, as to the evil of the offence, (The evii ot this will also, of course, be greater or less, accord- being dif- ing to the nature of each offence. The proportion cordin'gTo between the one evil and the other will therefore oni"e^o"-*^ be different in the case of each particular offence. no"'^beTe- The cases, therefore, where punishment is unpro- F^'S'^^'^d fitable on this ground, can by no other means be discovered, than by an examination of each parti- cular offence; which is what will be the business of the body of the work.
* See ch. v. [Pleasures and Pains.] t See ch. xii. [Consequences] iv.
CASES UNMEET FOR PUNISHMENT.
i^^v^ 2. Where, although in tlie ordinary state of llLi''cl2'in *^^"§^> *^^ ^vil resulting from the punishment is question: by not greater than the benefit which is likely to reason ot ^ •' result from the force with which it operates, during the same space of time, towards the ex- cluding the evil of the offence, yet it may have been rendered so by the influence of aome^ occa- sional circumstances. In the number of these [a] The circumstances may be, 1. The multitude of delindelinquents, qucuts at a particular juncture; bemg such as would increase, beyond the ordinary measure, the quantum of the second and third lots, and thereby also of a part of the fourth lot, in the evil of the [b] The punishment. 2. The extraordinary value of the value of a. „,,..,, delinquent's scrviccs 01 somc one delmqueut; m the case where Service the effect of the punishment A^ould be to deprive the community of the benefit of those services.
[c] The dis- 3. The displeasure of the people; that is, of an the people, indefinite number of the members of the same community, in cases where (owing to the influence of some occasional incident) they happen to con- ceive, that the offence or the offender ought not to be punished at all, or at least ought not to be [d] The dis- punished in the way in question. 4. The dis- foreign plcasurc of foreign powers; that is, of the govern- P""^"..^^ body, or a considerable number of the members ' of some foreign community or communities, with which the community in question, is connected.
CASES UNMEET FOR PUNISHMENT. 13 § 5. Cases xvhere punisJtment is needless. These are, XVII.
1. Where the purpose of putting an end to the i. where practice may be attained as effectually at a jg toTrpre- cheaper rate: by instruction, for instance, as well l^^^^^f * as by terror: by informing the understanding, ""^^^ = ^'*' as well as by exercising an immediate influence on the will. This seems vO be the case with By instruc- respect to all those offences which consist in the disseminating pernicious principles in matters of duti/; 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 bene- ficial. I say, even without: for though in such a case it is not instruction that can prevent the writer from endeavouring to inculcate his prin- ciples, yet it may the readers from adopting them: w ithout which, his endeavouring to incul- cate 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 indivi- dual to inculcate principles that are pernicious, it will as surely be the interest of othe?^ individuals to expose them. But if the sovereign must needs take a part in the controversy, the pen is the pro.
per weapon to combat error with, not the sword.
CHAP. XIV.
OF THE PROPORTION BETWEEN PUNISHMENTS AND OFFENCES.
I.
Recapituia- We have seeii 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.
Four objects When it is worth while, there are four subornient. dinatc designs or objects, which, m 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 natu- rally to propose to himself.
III.
1st Object 1. His first, most extensive, and most eligible all otiences. objcct, IS to prcvcut, m as tar as it is possible, and worth while, all sorts of offences whatsoever*: in other words, so to manage, that no offence whatsoever may be committed.
IV.
2d Object— 2. But if a man must needs commit an offence the worst. 01 somc Kind or other, the next object is to induce * By offences I mean, at present, acts which appear to him to have a tendency to produce mischief.
PUNISHMENTS AND OFFENCES. 15 him to commit an offence less mischievous, rather than one more mischievous: in other words, to choose always the least mischievous, of two of- fences that will either of them suit his purpose.
V.
3. When a man has resolved upon a particular 3d object offence, the next object is to dispose him to do 720 down the more mischiei than is necessary to his purpose: m other words, to do as little mischief as is con- sistent with the benefit he has in view.
VI.
4. The last obiect is, whatever the mischief be, ^th Object J ^ —to act at which it is proposed to prevent, to prevent it at the least as cheap a rate as possible.
VII.
Subservient to these four objects, or purposes. Rules of must be the rules or canons by which the pro- Keen^puportion 01 punishments* to onences is to be and offences. governed.
VIII.
Kule 1.
1. The first obiect, it has been seen, is to pre- O"^*^"^*' '' "^ ^ the profit ot the offence.
* [Punishments.] The same rules (it is to be observed) The same may be applied, with little variation, to rewards as well as ^^^, ^PP''" punishment: in short, to motives in general, which, accord- tives in ing 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 nega- tive kind, are stiled impelling or restraining. See ch. x. [Motives] xliii.
16 OF THE PROPORTION BETWEEN vent, in as far as it is worth while, all sorts of offences; therefore.
The value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit* of the offence^.
If it be, the offence (unless some other consi- derations, independent of the punishment, should intervene and operate efficaciously in the cha- Profit may * [Profit.] By the profit of an offence, is to be understood, other kind, i^ot merely the pecuniary profit, but the pleasute or advanas well as taffe, of whatever kind it be, which a man reaps, or expects to reap, from the gratification of the desire which prompted him to engage in the offence %. Impropriety It is the profit (that is, the expectation of the profit) of the that the pu- oiience that constitutes the impelling motive, or, where there nishnient ^^^ several, the sum of the impelling motives, by which a increase man is promted to engage in the offence. It is the punishtemptation. ^^^t, that is, the expectation of the punishment, that consti- tutes 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 offence. 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 poicer need not increase in proportion to the momentum of the burthen.
t Beccaria, dei diletti, § 6. id. trad. par. Morellet, § 23.
PUNISHMENTS AND OFFENCES.
racter of tutelary motives*) will be sure to be committed notwithstanding f: the whole lot of * See ch. xi. [Dispositions] xxix.
t 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 him- self 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 recognized: but, upon examination, it would be found, that the freshest laws of the most civilized nations are continally falling into the same error §. This, in short, is the case wheresoever the punishment is fixed while the profit of de- linquency 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.
t Wilkin's Leg. Anglo-sax. p. 71, 72, See Hume, Vol. I. App. I. p. 219. $ See in particular the English Statute laws throughout, Bonaparte's Penal Code, and the recently enacted or not enacted Spanhh Penal Code.
Note by the Author, July, 1822. VOL. IL C 18 OF THE PROPORTION BETWEEN punishment will be thrown away: it will be altogether inefficacious *.
IX.
The pro- The above rule has been often objected to, on taking the account of its seeuiiug harshness: but this can strength of „.,.
the tempta- ouly havc happened for want of its being properly ground of uudcrstood. The strength of the temptation, no objection ccEtcvis pttribus, IS as the profit of the offence: the lis in e. q^jjj^^yjjj Qf ^\^Q punishment must rise with the