profit of the offence: cceteris pa?ibus, 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 w^hich the act of delinquency affords of the depravity of the offender's disposition f. 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 disposi- tion, 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 punish- ment ineffectual, which it is sure to be when brought below the level of the apparent profit of the offence.
* See ch. xiii. [Cases unmeet] § 1. t See cli. xi. [Dispositions] xlii.
PUNISHMENTS AND OFFENCES. 19 The partial benevolence which should prevail Chap. for the reduction of it below this level, would ^ — v — ' 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 offence: cruelty even to the offender himself, by punishing him to no purpose, and without the chance of compassing that bene- ficial 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 Rule 2. in a given degree by a given quantity of punish- more against ment, is never any thing better than a chance; offe'nce than for the purchasing of which, whatever punishment is employed, is so much expended in advance. However, for the sake of giving it the better chance of outweighing the profit of the offence.
The greater the mischief of the offence, the greater is the e.vpence, which it may be worth while to be at, in the way of punishment*.
* For example, if it can ever be worth while to be at the ince^dU expence of so horrible a punishment as that of burning alive, ^'■'*™ ^"^ coining.
20 OF THE PROPORTION BETWEEN XI.
Rule 3. Rule 5. The next object is, to induce a man to choose least of t\vo always the least mischievous of two oitences; offences t;j „ be pre- therefore JVhere two offences come in competition, the punish- ment for the greater offence must be sufficient to induce a man to prefer the less*.
XII.
Rule 4. Rule 4. When a man has resolved upon a particular Punish for...,,., each particle offcncc, the ucxt objcct IS, to iiiducc him to do no chief. more mischief than what is necessary tor his pur- pose: therefore The punishment should be adjusted in such manner to each particular offence, that for everi/ part of the 7?iischief there may be a motive to restrain the of- fender from giving birth to it\.
it will be more so in the view of preventing such a crime as that of murder or incendiarism, than in the view of prevent- ing the uttering of a piece of bad money. See B. I. tit. [Defraudment touching the Coin] and [Incendiarism.] Example.— f If ^ny one have any doubt of this, let him conceive the '"v^'"'and offence to be divided into as many separate offences as there monej are distinguishuble 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 offence for which PUNISHMENTS AND OFFENCES. ^1 XIII. <"HAr.
XIV.
The last object is, whatever mischief is s^uarded ^'"'« 5.
against, to guard against it at as cheap a rate as "» degree possible: therefore ciai reas,on.
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 Rule 6. different manners and degrees in which persons circum- under different circumstances are affected by the Auendng' same exciting cause, a punishment which is the *^"^' ' '*^* same in name will not always either really pro- duce, or even so much as appear to others to 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 offence 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. &o.
11 OF THE PROPORTION BETWEEN XIV- produce, in two different persons the same degree That the quantity actually inflicted on each indi- vidual offender may correspond to the quantity intended for similar offenders in general, the several circum- stances influencing seiisibility ought always to be taken into account*.
XV.
Commpara- Of the above rules of proportion, the four first, the above WO may perceivc, serve to mark out the limits on the side of diminution; the limits belcfw 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, for the same purpose; but principally for guiding the judge in his endeavours to conform, on both sides, to the intentions of the legislator.
XVI.
Into the ac- Let US look back a little. The first rule, in count of the value of a oi'deY to rcudcr it more conveniently applicable punishment,..
must be to practicc, may need perhaps to be a little more deficiency particularly unfolded. It is to be observed, then, certainty that lor the sakc 01 accuracy, it was necessary, i'mity.'^"" instead of the word quantity to make use of the less perspicuous term value. For the word quan- tity will not properly include the circumstances * See ch. vi. [Sensibility.]
PUNISHMENTS AND OFFENCES. 23 either of certainty or proximity: circumstances Chap.
. XIV.
which, in estimating the value of a lot of pain or '' — v — ' pleasure, must always be taken into the account*. Now, on the one hand, a lot of punishment is a lot of pain; on the other hand, the profit of an offence is a lot of pleasure, or what is equivalent to it. But the profit of the offence is commonly more certain than the punishment, or, what comes to the same thing, appears so at least to the of- fender. It is at any rate commonly more imme- diate. It follows, therefore, that, in order to maintain its superiority over the profit of the offence, 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 f.
XVII.
Yet farther. To make sure of giving the value Also, into of the punishment the superiority over that or the of the mis- * See ch. iv, [Value.]
fit is for this reason, for example, that simple compensa- tion is never looked upon as sufficient punishment for theft or robbery.
24 OF THE PROPORTION BETWEEN Cha p. offence, it may be necessary, in some cases, to take ^rTv---' into the account the profit not only of the indivicnief, and -"^ •' profit of the ^^^^/ offence to which the punishment is to be oite.ice, the ^ mischief anncxcd, but also of such other offences of the and profit of other of- same sort as the offender is hkely to have already the same 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 7iot 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. Rule 7. These things beinff considered, the three fol- Want of ^.
certainty lowiug rulcs may be laid down by way of supple- made up b ment and explanation to Rule 1.
magnitude.
To enable the value of the punishmeiit to outweigh that oj the profit of the offence, it must be encreased, in point of magnitude^ in proportion as it falls short in point of cei^tainty.
PUNISHMENTS AND OFFENCES. 25 XIX.
Rule 8. Punishment must be further encreased in point of Rule 8.
magnitude^ in proportion as it jails snort in point of of prox- imity. proj:imiti/.
XX.
Rule 9- Where the act is conclusively indicative of a habit, ^^^^^^Xv such an encrease must be given to the punishment ^-^ J|lS?'^u°^* may enable it to outweigh the profit not only of the "'sh ^ for individual offetice, but of such other like offences as are likely to have been committed with impunity by the same offender.
XXI.
There may be a few other circumstances or 7^^ '■^™^'"* •" ing rules are considerations which may influence, in some small "f 'es* ""- '' ^ portauce.
degree, the demand for punishment: but as the propriety of these is either not so demonstrable, or not so constant, or the appUcation 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 ^"le lo. particularly well calculated to answer its intention, of quality, increase in cannot exist m less than a certain quantity, it may quantity. 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.
*^ OF THE PROPORTION BETWEEN XXIII.
Rule 11. Rule 11. In particular^ this may sometimes be the case.
Particularly.
for a moral whcrx the pumshmoit proposed is of such a nature as to be particularly well calculated to answer the purpose of a moral lesson*.
XXIV.
Rule 12. Rule 12. The tendency of the above considerations is to Attend to, circumstan- dictatc au augmentation in the punishment: the may render followiiig Tule opcratcs in the Way of diminution. unprofitable. Thcrc Eic cei'taiu cases (it has been seenf) in which, by the influence of accidental circum- stances, punishment may be rendered unprofit- A punish- * A punishment may be said to be calculated to answer ment ap plied by the purpose of a moral lesson, when, by reason of the ig- "'^^?f nomy it stamps upon the offence, it is calculated to inspire what. the public with sentiments of aversion towards those pernicious habits and dispositions with which the offence appears to be connected; and thereby to inculcate the opposite beneficial habits and dispositions. Example. — It is this, for example, if any thing, that must justify the corponil application of so severe a punishment as the infamy of a injuries. 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.] Example— It is partly on this principle, I suppose, that mihtary iTw?' '^"'^^ legislators have justified to themselves the inflicting death on the soldier who lifts up his hand against his superior officer.
t See ch. xiii. [Cases unmeet.] ^ 4.
PUNISHMENTS AND OFFENCES.
able 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 cir- cumstances, 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 R"ie i3. mmute any set of pro^^slons are, the greater the city's sake, chance is that any given article in them will not proportions be borne in mind: without which, no benefit can Hegkcted. ensue from it. Distinctions, which are more com- plex 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 estab- lished by the articles in question, but of whatever is connected with them, will be destroyed*. 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 prwisions designed to perfect the propor- tion between punishments and offences, if any occur, which, by their own particular good effects, would See B. II. tit. [Purposes.] Append, tit. [Composition.]
28 OF THE PROPORTION BETWEEN not make up for the harm they would do by adding to the intricacy of the Code, they should be omitted*.
XXVI.
Auxiliary It mav be remembered, that the political sane- physical, tion, being that to which the sort of punishment moral, and religious bclongs, which in this chapter is all along in view, here allowed is but onc 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 controuling 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 poli- tical f) 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.
Proportion- * Notwithstanding this rule, my fear is, that in the very far'in ^^^uing model, I may be thought to have carried my en- the presint deavours 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.
t See B. I. tit. [Punishments.]
PUNISHMENTS AND OFFENCES.
29 and value. The legislator is therefore obliged to provide the full complement of punishment, as if he were sure of not receiving any assistance w^hat- ever from any of those quarters. If he does, so much the better: but least he should not, it is necessary he should, at all events, make that pro- vision which depends upon himself, xxvii. It may be of use, in this place, to recapitulate Becapituia- the several circumstances, which, in establishing the proportion betwixt punishments and offences, are to be attended to. These seem to be as follows: I. On the part of the offence: 1. The profit of the offence; 2. The mischief of the offence; 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 offences, of the same sort, which the same of- fender 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; 30 OF THE PROPORTION BETWEEN 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: 1 1. The responsibility of the class of persons in a way to offend; 1 2. The sensibility of each particular offender \ 13. The particular merits or useful quahties 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 punish- ment; 16. The inchnations of foreign powers.
V. On the part of the law: that is, of the pubUc for a continuance: 1 7. The necessity of making small sacrifices, in point of proportionahty, for the sake of simplicity.
XXVIII.
The nicety Thcrc are some, perhaps, who, at first sight, here ob- ^ ^ PUNISHMENTS AND OFFENCES. 31 may look upon the nicety employed in the adjust- Chap. ment of such rules, as so much labour lost: for ' — sr-^^, served vingross ignorance, they will say, never troubles djcatedfrom itself about laws, and passion does not calculate, ot inutility. But the evil of ignorance admits of cure *: 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 f. Passion calculates, more or less, in every man; in different men, according to the warmth or coolness of their dis- positions: 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 calcula- tion, from the excesses of which, by reason of its strength, constancy, and universality, society has most to apprehend I: I mean that which corres- * See Append, tit. [Promulgation.]
t There are few madmen but what are observed to be afraid of the strait waistcoat.
X See ch. xii. [Consequences.] xxxiii.
S? ^ OF THE PROPORTION BETWEEN, Sec.
ponds 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.
CHAP. XV.
OF THE PROPERTIES TO BE GIVEN TO A LOT OF PUNISHMENT.
I.
It has been shewn what the rules are, which properties ought to be observed in adjusting the proportion ^g^nej b^"* between the punishment and the offence. The p™?"'^*'""* 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 ap- plied, in conformity to those rules: the quality will be regulated by the quantity.
II. The first of those rules, we may remember, p,operty i. was, that the quantity of punishment must not be ^'^''"^^^">'- less, in any case, than what is sufficient to out- weigh 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 ineffica- cious. 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 individvial offence, that every part of the mischief of that offence may have a penalty (that is, a tutelary motive) to encounter it: other- VOL. II. D 34 OF THE PROPERTIES TO BE GIVEN TO wise, with respect to so much of the offence 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 offence to which it is annexed, such lot of punish- ment 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 va- riable in point of quantity, in conformity to every variation which can take place in either the profit or mischief of the offence. This property might, perhaps, be termed, in a single word, variability.
III. Property 2. A sccoud property, intimately connected with Equability...
the former, may be stiled 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.
A LOT OF PUNISHMENT. 35 that same degree shall be liable, according to cir- c^a^p. cumstances, 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 pro- duced which will be iieedkss: if the other way, there will be no pain at all applied, or none that will be ejfficaciuus. A punishment, when liable to this irregularity, may be stiled 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 circum- stances by which a man's sensibility is liable to be influenced. But the influence of these very cir- cumstances will in many cases be reciprocally in- fluenced 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 un- dergo. So far, then, as this is the case, equability or unequability may be regarded as properties belonging to the punishment itself.
36 OF THE PROPERTIES TO BE GIVEN TO IV.
Punish- ^^^ example of a mode of punishment which is ments which ^pt to be uncQuable, is that of banishment, when be deficient the locus tt quo (or placc the party is banished spect. 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, there- fore, 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*.
V.
Property 3. The third rule of proportion was, that where Commensurabiiity to two offcnccs couic iu couipctitiou, the punishment otlier pu-..
nishments. for the greater offence must be sufficient to in- * By the English law, there are several offences 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.
A LOT OF PUNISHMENT.
duce a man to prefer the less. Now, to be suffi- cient 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 offences; that is, in effect, of all mankind. In other words, the two punishments must be per- fectly commensurable. Hence arises a third pro- perty, which may be termed comynensavabUity: to wit, with reference to other punishments*.
VI.
But punishments of different kinds are in very How two few instances uniformly greater one than another; nishment' may be ren- perespecially when the lowest degrees of that which dered is ordinarily the greater, are compared with the menJiSe. highest degrees of that which is ordinarily the less: in other words, punishments of different kinds are in few instances uniformly commensu- rable. The only certain and universal means of making two lots of punishment perfectly com- mensurable, is by making the lesser an ingredient * See View of the Hard-Labour Bill. Lond, 1778.
For the idea of this property, I must acknowledge myself indebted to an anonymous letter in the St. James's Chro- nicle, 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 account of the channel by which it was first communicated, let him tell me where I can find an idea more ingenious or original.
38 OF THE PROPERTIES TO BE GIVEN TO Chap, in the composition of the greater. This may be ^— -V — ' 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 contem- plation, will appear greater than none at all.
VII.
Property 4. Affaiu: Punishmcut cannot act any farther Character- ^ _, /