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.
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.
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 offences whatsoever:* in other words, so to manage, that no offence whatsoever may be committed.
* By offences I mean, at present, acts which appear to him to have a tendency to produce mischief.
2. But if a man must needs commit an offence of some kind or other, the next object is to induce him to commit an offence less mischievous, rather than one more mischievous: in other words, to choose always the least mischievous of two offences that will either of them suit his purpose.
3. When a man has resolved upon a particular offence, 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.
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.
Subservient to these four objects, or purposes, must be the rules or canons by which the proportion of punishments* to offences is to be governed.
* [Punishments.] 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], par. 43.
Rule 1. — 1. The first object, it has been seen, is to prevent, in as far as it is worth while, all sorts of offences: therefore,
If it be, the offence (unless some other considerations, independent of the punishment, should intervene and operate efficaciously in the character of tutelary motives∥ ) will be sure to be committed not withstanding:§ the whole lot of punishment will be thrown away: it will be altogether inefficatious.*
† [Profit.] By the profit of an offence, is to be understood, not merely the pecuniary profit, but the pleasure or advantage, 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.a
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 offence. 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 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 power need not increase in proportion to the momentum of the burthen.
a See ch. x. [Motives], § 1.
‡ Beccaria, dei diletti, § 6, id. trad. par. Morellet, § 23.
∥ See ch. xi. [Dispositions], par. 29.
§ 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:b 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 7200 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 civilized nations are continually falling into the same error.c This, in short, is the case 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.
b Wilkin’s Leg. Anglo-Sax. p. 71, 72. See Hume, Vol. I. App. I. p. 219.
c See in particular the English Statute Laws throughout, Bonaparte’s Penal Code, and the recently enacted or not enacted Spanish Penal Code. —Note by the Author, July 1822.
* See ch. xv. [Cases unmeet], § 1.
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 offence: the quantum of the punishment must rise with the profit of the offence: 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.† 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 offence.
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 offence: 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.
† See ch. xi. [Dispositions], par. 42.
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 in advance. However, for the sake of giving it the better chance of out-weighing the profit of the offence,
The greater the mischief of the offence, the greater is the expense, 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 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.]
Rule 3. The next object is, to induce a man to choose always the least mischievous of two offences: therefore,
Where two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less.†
† Espr. des Loix, L. vi. c. 16.
Rule 4. When a man has resolved upon a particular offence, 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.‡
‡ If any one have any doubt of this, let him conceive the offence to be divided into as many separate offences 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 offence 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 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. &c.
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.
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 inflicted 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.∥
∥ See ch. vi. [Sensibility.]
Of the above rules of proportion, the four first, we may perceive, serve to mark out the 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, for the same purpose; but principally for guiding the judge in his endeavours to conform, on both sides, to the intentions of the legislator.
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.§ 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 offender. It is, at any rate, commonly more immediate. 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.*
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 the 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 com. 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.
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 offence, it must be increased, in point of magnitude, in proportion as it falls short in point of certainty.
Rule 8. Punishment must be further increased in point of magnitude, in proportion as it falls short in point of proximity.
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 offences as are likely to have been committed with impunity by the same offender.
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.
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.
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.†
† 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 offence, it is calculated to inspire 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.
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.
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 seen)‡ 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.
‡ See ch. xv. [Cases unmeet], § 4.
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.* 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.†
* See B. II. tit. [Purposes.] Append. tit. [Composition.]
† 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.
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 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 political)‡ 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.
‡ See B. I. tit. [Punishments.]
It may be of use, in this place, to recapitulate the several circumstances, which, in establishing the proportion betwixt punishments and offences, are to be attended to. These seem to be as follows:—
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:∥ 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.§ 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:* 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.
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