isticaiiie.ss. thaii ill as far as the idea of it, and of its connec- tion with the offence, 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 ail punishments that can be imagined, there are none of which the connection with the offence is either so easily learnt, or so efficaciously re- membered, as those of which the idea is already in part associated with some part of the idea of the offence: 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 offence, the punishment is said to bear an analogy to, or to be characteristic of.
A LOT OF PUNISHMENT. 39 the offence*. Characteridicalness \s, therefore, a Chap.
fourth property, which on this account ought to ' — v — ' be given, whenever it can conveniently be given, to a lot of punishment.
VIII.
It is obvious, that the effect of this contrivance The mode ot will be the greater, as the analogy is the closer. rh"e"mosr'' The analogy will be the closer, the more material^ ci?aracte^ that circumstance is, which is in common. Now ofretaiia*"^* the most material circumstance that can belong *'°"* to an offence and a punishment in common, is the hurt or damage which they produce. The closest analogy, therefore, that can subsist between an offence and tlie 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 cir- cumstance of identity in point of damage;|;. Ac- cordingly, the mode of punishment, which of all others bears the closest analogy to the offence, is that which in the proper and exact sense of the * 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.
t See ch. vii. [Actions.] iii.
X 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.
40 OF THE PROPERTIES TO BE GIVEN TO 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.
Properly 5. Again: It is the idea only of the punishment rity. (or, m other words, the apparent punishment) that really acts upon the mind; the punishment itself (the real punishment) acts not any farther than as giAing 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 prin- cipal object*. It is the real punishment that does all the mischief f. 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 pu- nishment is needless. As to these less expensive means, they consist, 1. In the choice of a parti- cular mode of punishment, a punishment of a particular quality, independent of the quantity \. 2. In a particular set of solemnities distinct from * See ch. xiii. [Cases unmeet] §1,2. note, t lb. § 4. par. iii. I See B. I. tit. [Punishments.]
A LOT OF PUNISHMENT. 41 the punishment itself, and accompanying the Cuav. execution of it*. ' — v — ' X.
A mode of punishment, according as the ap- The most efpearance oi it bears a greater proportion to the ofrendering reahty, may be said to be the more exemplary. menteVera- Now as to what concerns the choice of the veins' of ^ punishment itself, there is not any means by ^"^"SJ* 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 offence. Hence another reason for rendering the punish- ment analogous to, or in other words character- istic of, the offence.
XI.
XI.
Punishment, it is still to be remembered, is in property 6» itself an expence: it is in itself an eyilf. Accord- ''"^^'*^* ingly the fifth rule of proportion is, not to pro- duce 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 pro- duce any such superfluous and needless pain, it may be styled uufrugal; if less, it may be styled frugal. Frugality, therefore, is a sixth property to be wished for in a mode of punishment.
* See B. II. tit. [Execution.] t Ch. xiii. [Cases vmmeet] par. ii.
43 OF THE PROPERTIES TO BE GIVEN TO Chap. vti FiT^iit"' ^^^^ perfection of frugality, in a mode of belongs in punishment, is where not only no superfluous perfection ^ J r to pecuniary pain is produccd 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 substraction 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*: 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.
XIII.
Exempiariiy fhe properties of exemplarity and frugality lity in what seem to pursuc the same immediate end, thoue-h they differ, ^...and agree, by different courses. Both are occupied in dimi- * lb. nole.
A LOT OF PUNISHMENT. 43 nishing 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 Other pro- " ■'••'■ perties of given to punishments in general, to whatsoever inferior imoffences they are to be applied. Those which follow are of less importance, either as referring only to certain offences in particular, or depend- ing 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*, may give rise to so many distinct properties, according as any particular mode of punishment appears to be more particularly adapted to the compassing of one or of another of those ends. To that of e.iwnple, as being the principal one, a particular property has already been adapted. There remain the three inferior ones of reformation f disablement, and compensation.
XV.
A seventh property, therefore, to be wished for Property 7, Subsei' vi- lli a mode of punishment, is that of subserviency to ency to rereformation, or reforming tendency. Now any punishment is subservient to reformation in pro- portion to its quantity: since the greater the punishment a man has experienced, the stronger * See ch.' xiii. [Cases unmeet] par. ii. note.
44 OF THE PROPERTIES TO BE GIVEN TO C"^p. is the tendency it has to create in him an aversion ^~"v — ' towards the offence which was the cause of it: and that with respect to all offences alike. But there are certain punishments which, with regard to certain offences, have a particular tendency to produce that effect by reason of their qualify: and where this is the case, the punishments in question, as applied to the offences in question, will^?'o trmto 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.
XVI.
—applied Thus, iu offcuccs Originating from the motive oHgii'albg of ill-will*, 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 offence which consists in an obstinate refusal, on the part of the offender, to do something which is lawfully required of himf, and in which the obstinacy is in great measure kept up by his resentment against those who have an interest in forcing liim to compliance, the most efficacious punishment seems to be that of confinement to spare diet.
* See ch. x. [Motives.] t SeeB. I. tit. [Oftences against Justice.]
A LOT OF PUNISHMENT. 45 XVII.
Thus, also, in offences which owe their birth to ^ ^ —to oiicnces the ioint influence of indolence and pecuniary?''s'"at"'g interest, that punishment seems to possess thejo'ned/o strongest reforming tendency, which is best cal- interest. culated 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.
XVIII.
An eighth property to be given to a lot of Property 8. punishment in certain cases, is that of efficacy wi'h respect with respect to disablement, or, as it might be stiled ment. more briefly, disabling efficacy. This is a property which may be given in perfection to a lot of punishment; and that with much greater cer- tainty than the property of subserviency to re- formation. The inconvenience is, that this property is apt, in general, to run counter to that of fru- gality: 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 ineasure, from doing good, either to himself or others. The mischief therefore of the offence 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 punish- '*^ OF THE PROPERTIES TO BE GIVEN TO ^'^'*''- ment equal to that which is necessary for the "^ "^ ' purpose of disablement.
XIX.
—is most The punishment, of which the efficacy in this conspicuous ^ •' in capital 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 offences of so questionable a nature, in which the question concerning crimi- nality 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 unfnigal; which forms one among the many objections there are against the use of it, in any but very extraordinary cases*.
XX.
Other pu- jj^ ordinary cases the purpose may be suffinishinents •' x x.'
in which ciently answered by one or other of the various lound. kinds of confinement and banishment: of which, imprisonment is the most strict and efficacious. For when an offence is so circumstanced that it cannot be committed but in a certain place, as is * See B. I. tit. [Punishments,] A LOT OF PUNISHMENT. 47 the case, for the most part, with offences against 9j^^- 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 offences which consist in the breach or the abuse of any kind of trust, the purpose may be com- passed at a still cheaper rate, merely by forfeiture of the trust: and in general, in any of those offences 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.
XXI.
The ninth property is that of subserviency to Property 9. compensation. This property of punishment, if it encjTocom- be vindictive compensation that is in view, will, f"^*^"°"- with little variation, be in proportion to the quan- tity: if lucrative, it is the peculiar and character- istic property of pecuniary punishment.
XXII.
In the rear of all these properties may be P'q- introduced that of popularity; a very fleeting and Popularity. indeterminate kind of property, which may belong to a lot of punishment one moment, and be lost ^^ A LOT OF PUNISHMENT.
by it the next. By popularity is meant the pro- perty of being acceptable, or rather not unac- ceptable, 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 unpo- pularity: for it cannot be expected, in regard to such a matter as punishment, tliat any species or lot of it should be positively acceptable and grateful to the people: it is sufficient, for th^*^ most part, if they have no decided aversion to the thoughts of it. Now the property of character- isticalness, 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 characteristical- ness *. The use of inserting this property in the cataloguej is chiefly to make it serve by way of memento to the legislator not to introduce, with- out a cogent necessity, any mode or lot of punish- ment, towards which he happens to perceive any Character- * '^^^ property of eharacteristicalness, therefore, is useful isticalness in a mode of punishment in three different ways: 1. It renders a...punishment, renders a mode of punishment, before infliction, more easy bie'"^2'"ex- *^ ^^ borne in mind: 2. It enables it, especially after inflicemplar_y: tion, 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.
A LOT OF PUNISHMENT.
49 violent aversion entertained by the body of the people.
XXIII.
The effects of unpopularity in a mode of pu- Mischiefs nishment are analogous to those of unfrugality. from the un- The unnecessary pain which denominates a pu- or a"puniih- nishment unfrugal, is most apt to be that which "ntent '** is produced on the part of the offender. A portion p™°pie/and of superfluous pain is in like manner produced ^^^J^^^^ '" when the punishment is unpopular: but in this case it is produced on the part of persons alto- gether innocent, the people at large. This is already one mischief; and another is, the weak- ness 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 offence receives an increase. In process of time that deficiency, as usual, is apt to draw on an encrease in magnitude: an addition of a certain quantity which otherwise would be needless*.
XXIV.
XXIV.
This property, it is to be observed, necessarily This pro- perty sup- * See ch. xiii. [Cases unmeet] § v. VOL. II. E cure 50 OF THE PROPERTIES TO BE GIVEN TO ^^y- supposes, on the part of the people, some preju- ,^77""^ (lice or other, which it is the business of the learisposes a pre- ' o judice which ij^itor to eudeavour to correct. For if the aversion the legislator oufrht to 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 unpo- pularity would never be worth drawing into ques- tion. 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 legis- lator: 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 dissatis- faction 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 * XXV.
Propertjii. The eleventh and last of all the properties that Remissibi-...in • i lity. seem to be requisite m a lot oi punishment, is See ch. xiii. [Cases unmeet] ^ iv. par. iv.
A LOT OF PUNISHMENT.
that of remissibility*. The general presumption is, that when punishment is applied, punishment is needful: that it ought to be applied, and there- fore 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 offence. At the time of the sentence passed he appeared guilty: but since then, accident has brought his inno- cence 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 fi-om as much as is yet to come. But is there any yet to come? There is very little chance of their being any, unless it be so much as consists of chronical punishment: such as im- prisonment, banishment, penal labour, and the like. So much as consists in acute punishment, to wit where the penal process itself is over pre- sently, however permanent the punishment may be in its effects, may be considered as /^remissible. 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 can- * See View of the Hard Labour Bill, p. 109.
5^ OF THE PROPERTIES TO BE GIVEN TO not, when they are over, be remitted, they may be compensated for; and although the unfor- tunate victim cannot be put into the same con- dition, 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 pu- nishment 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 punish- ment is, in other respects, what it ought to be. The purpose of example is the more important object, in comparison of that of reformatian*. 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 * See ch xiii. [Cases unmeet] ii. note.
A LOT OF PUNISHMENT. •'•^ on the part of the offender, that can warrant the ^^'^l*- remitting of any part of it: if it could, a man "^ ^ ' would have nothing to do but to reform imme- diately, 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 pro- perty 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 To obtain . all these modes of punishment, it will appear evidently, properties,...r> 1 1 punishments that there is not any one oi them that possesses must be 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 ii* OF THE PROPERTIES TO BE GIVEN TO 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.
The forego- It may not be amiss to bring together, and ties recapi- exhibit ill one view, the eleven properties above established. They are as follows: Two of them are concerned in establishing a proper proportion between a single offence 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 effica- cious; 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 use- less punishment; the one indirectly, by heighten- ing 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.
A LOT OF PUNISHMENT.
55 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.
1 1. Remissibility.
The properties of commensurability, charac- teristicalness, exemplarity, subserviency to re- formation, 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 re- missibility, to diminish the eTpence: variability and equability are alike subservient to both those purposes.
XXVIII.
We now come to take a general survey of c°"'!^*^^'.°" the system of oifences: that is, of such acts to t^e ensuing which, on account of the mischievous consequences they have a natural tendency to produce, and in the view of putting a stop to those conse- quences, 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.
CHAP. XVI.
§ I. CLASSES OF OFFENCES. I.
Distinctiou *It is necessary, at the outset, to make a distincbetween wimtare tioii between such acts as are or may be, and offences and •-' what ought to be.
Method * This chapter is an attempt to put our ideas of offences the following ^'^ to an exact method. I he particular uses ot method are divisions, various: but the general one is, to enable men to under- stand 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 pe- culiar 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