To afford a clear apprehension of the subject of the following work, which subject is Punishment, it is necessary that what punishment is, and what punishment is not, should be clearly understood. For this purpose it will be proper to distinguish it from those objects with which it is in danger of being confounded, and also to point out the different shapes which it may assume.
Punishment, whatever shape it may assume, is an evil. The matter of evil, therefore, is the sort of matter here in question: the matter of evil in almost all the shapes of which it is susceptible. In considering this matter, two objects, constant accompaniments one to the other, will require to be distinguished, viz. 1. The act by which the evil is considered as being produced; and, 2. What is considered as being the result of that same act, the evil itself which is thus produced.
The English language affords but one single-worded appellative in common use for designating both these objects, viz. Punishment.*
Punishment may be defined — an evil resulting to an individual from the direct intention of another, on account of some act that appears to have been done, or omitted. The propriety of this definition will appear, and its use be manifested, by taking it to pieces, and examining its several constituent parts.
Punishment, then, is an evil— that is, a physical evil; either a pain, or a loss of pleasure, or else of that situation or condition of the party affected, which is the immediate cause of such pain or loss of pleasure. It is an evil resulting from the direct intention of another. It is not punishment, if it be obliquely intentional on the part of the person from whose agency it results, but an evil of some other nature, but which, however, is not in all cases distinguished by a specific name.
It is an evil resulting to a person from the direct intention of another, on account of some act that has been done or omitted. An evil resulting to an individual, although it be from the direct intention of another, if it be not on account of some act that has been done or omitted, is not a punishment. If, out of wantonness, for the sake of sport, or out of ill-will, resulting from an antipathy you entertain against a man’s person, without having any particular act of his to ground it upon, you do him a mischief, the evil produced in this case is what nobody would understand to come under the name of punishment.
But so it be on account of some act that has been done, it matters not by whom the act was done. The most common case is for the act to have been done by the same person by whom the evil is suffered. But the evil may light upon a different person, and still bear the name of punishment. In such case it may be styled punishment in alienam personam, in contradistinction to the more common case in which it may be styled punishment in propriam personam. Whether the act be ultimately or only mediately intentional, it may, consistently enough with common usage, bear the name of punishment; though, according as it was in the one or other way that the intention happened to regard it, the act will assume a different name, as we shall have occasion to mention presently.
It must be on account of some act that at least appears to have been done; but whether such an act as appears to have been done, or any act actually was done, is not material.
By the denomination thus given to the act, by the word punishment, taken by itself, no limitation is put to the description of the person of the agent; but on the occasion of the present work, this person is all along considered as a person invested for this purpose with the authority of the state; a legislator appointing the species of evil to be inflicted in a species of case; or a judge appointing the individual lot of evil to be inflicted in this or that individual case.
Vengeance, antipathy, amendment, disablement, determent, self-defence, self-preservation, safe custody, restraint, compulsion, torture, compensation in the sense in which it means a particular mode of satisfaction for injury or damage — burthen in any such phrase as that of imposition of a burthen, and taxation: by all these several words, ideas are presented which will require in each instance to be compared, and in most instances to be distinguished from the ideas presented by the word punishment.
Take whatever portion of the matter of evil is upon the carpet: whether the term punishment shall or shall not with propriety be applied, depends upon the position in which the actual result stands with reference to the time in which the will or intention of the agent acts.
Intention or unintentional: if intentional, directly or indirectly, or, to use another word, collaterally intentional; if directly, ultimately, or but mediately intentional; such are the modifications which the matter of evil may be considered as receiving, when considered in the character of an object to which the will or intention turns itself.
In some cases, the man in power, or some person or persons, having, as he supposes, received, at the hands of some person or other, evil in some shape or other, the object which he has in view, in the affliction of the evil in question, is an enjoyment of a certain kind, which he derives, or expects to derive, from the contemplation of the evil thus sustained. In this case, the act in question is termed an act of vengeance.
So far as this, and this alone, is his object, this evil thus produced is not only directly but ultimately intentional.
Whether in the character of a sole object, a result of this nature be a fit object for the man in power to propose to himself, is indeed a very important question, but one which has no place here: punishment, by being misapplied, is not the less punishment.
Laying out of the above case the supposed antecedent evil, you have no longer an act of vengeance, but an act performed for the mere gratification of antipathy. But by the supposition having for its author or agent the legislator or the judge, it is still not the less an act of punishment.
Of the cases in which the act productive of the evil, intentionally produced by the hand of power, is termed an act of punishment, the most common class is that which is composed of those in which, on the part of the agent, the evil thus produced is, though intentional, and even directly intentional, yet not ultimately, but only mediately intentional.
In this case, the ultimately intentional object — the object in relation to which the act of punishment is intended to minister in the character of a means to an end — may be either an act of the negative or the positive* cast.
When the act to which the punishment is annexed is of the positive cast, the ultimately intentional object aimed at by the act of punishment is of the opposite cast; and so, when the offence is negative, the result, the production of which is aimed at by the punishment, is positive.
If the offence be of the positive cast, then come the following string of appellatives, expressive of the results, the production of which is in different ways aimed at, viz. 1. Amendment or reformation; 2. Disablement; 3. Determent; 4. Self-defence; 5. Self-preservation; 6. Safe custody; and 7. Restraint.
If the offence be of the negative cast, then comes another string of appellatives, expressive, as above, of the results aimed at, viz. 1. Compulsion or restraint; 2. Torture; 3. Compensation, in the sense in which it is equivalent to satisfaction, rendered in consideration of injury resulting from an offence, or in consideration of damage produced without intentional injury; 4. Taxation.
Whether the result aimed at be of the negative or positive cast, the terms, coercion, obligation, burthen, or the phrase imposition of a burthen, are competent to the designation of it.
Amendment, or reformation, and disablement, are words expressive of the result aimed at, in so far as the conduct of the supposed delinquent is concerned. In the case of amendment or reformation, the obnoxious act is regarded as being of such a nature, that by a single instance of its being committed, such a degree of disorder in the moral constitution is indicated, as requires a general change to remove it, and bring the patient to a state of ordinary purity.
Few, if any, offences of the negative class being to be found which exhibit any such degree of malignity — the use of the terms amendment and reformation is nearly confined to the case when the obnoxious act, the prevention of which is the ultimate end of the punishment, is of the positive kind.
Disablement is a term for which, with reference to an act of the negative kind, a place is hardly to be found. Doing nothing is a sort of offence to which every man is so competent, that all endeavours on the part of government to disable a man from committing it may be set at defiance.
Determent is a result equally applicable to the case either of a positive or negative offence. It is moreover equally applicable to the situation of the already-punished delinquent, and that of other persons at large; nor does it involve, on the part of the punished delinquent, the supposition of any such general disorder as is implied by the words amendment or reformation.
When the ultimately intentional result is amendment or reformation, it is by the impression made by the action of the evil on the will of the offender that, in so far as it is produced, the result is considered as being produced. In this case, the act of punishment is also termed an act of correction.
When the ultimately intentional result is disablement, it is by depriving the offender of the power of committing obnoxious acts of the like description, that, in so far as it is produced, the result is considered as being produced. In this case, the course taken to produce the result may either be such the nature of which is to produce it only for a time, as is done by temporary imprisonment, confinement, or deportation; or for ever, as would in some cases be done by mutilation.
In so far as by the act of punishment exercised on the delinquent, other persons at large are considered as deterred from the commission of acts of the like obnoxious description, and the act of punishment is in consequence considered as endued with the quality of determent; it is by the impression made on the will of those persons, an impression made in this case not by the act itself, but by the idea of it, accompanied with the eventual expectation of a similar evil, as about to be eventually produced in their own instances, that the ultimately intentional result is considered as produced; and in this case it is also said to be produced by the example, or by the force of example.
Between self-defence and punishment, the relation is of this sort, viz. that to the same act which ministers to the one of those purposes, it may happen to minister to the other. This coincidence may have place in either of two ways: an act which has self-defence for its direct object and result, may have punishment for its collateral result; or an act which has punishment for its direct object and result, may have self-defence for its collateral result.
In repelling a personal assault, it may happen to an individual, intentionally or unintentionally, to inflict on the assailant a suffering by any amount greater than that of any which, by the assault, was inflicted on himself: if unintentionally, self-defence was not only the sole ultimately intentional, but the sole intentional result: but the suffering of the assailant, though not the collaterally intentional, was not in effect less truly the collateral result.
On the other hand, in inflicting punishment on a delinquent, it may happen to the man in authority to be exercising on his own behalf an act of self-defence; in regard to all offences, such as rebellion and treason, which have for their object or their effect the subversion of the government, or the weakening of its powers. But it is only in reference to such offences that an act of punishment can, with reference to the constituted authorities, be with propriety called an act of self-defence.
But if in lieu of the constituted authorities, the members of the community at large be considered as the persons by whom the punishment is inflicted; then is all punishment an act of self-defence, in relation to the particular species of evil with which the offence thus punished is pregnant: an act tending to defend the community against offences of the sort in question, with their attendant evils, viz. by means of reformation, disablement, and determent, one or more of them as above.
In the signification of the word self-defence, it is implied that the evil against which the party is endeavouring to guard himself has, for its cause, an act done by some sentient being, with the intention of producing that same evil.
The word self-preservation is alike applicable, whatsoever be the source or quarter from which the evil is considered as about to come. In so far, therefore, as the act of punishment is with propriety capable of being termed an act of self-defence, it is, with the same propriety, capable of being termed an act of self-preservation.
Between safe custody and punishment, the relation is of this sort:— To one and the same operation, or factitious state of things, it may happen to be productive of both of these effects. But in the instance of the same individual, it is only to a limited degree that there can be a sufficient reason for making provision for both at the same time.
To a considerable extent, imprisonment with propriety may be, and every where is applied, under the name and to the purpose of punishment. In this case, safe custody is in part the same thing with the intended punishment itself; in part, a concomitant necessary to the existence and continuance of whatsoever inflictions it may be deemed proper to add to those which are inseparable from the safe custody itself.
But in another case, imprisonment, or an infliction of the same name, at least, as that which is employed as above, for the purpose of punishment, is to a great extent administered ultimately for the purpose of eventual forthcomingness, and mediately for the purpose of safe custody, though no such thing as punishment is, or, at least, ought to be intended, because no ground for punishment has as yet been, and perhaps never may be, established.
Between restraint and punishment, the relation is of this sort. In some shape or other, restraint is the directly intentional result of every prohibitive law. The evil, whatever it be, that constitutes an inseparable accompaniment of the state thus denominated, is a collaterally intentional result of that same law. The evil of the restraint may be very moderate; but still, by every general prohibitive law, evil in some shape or other, in some quantity or other, must come.
At the same time, restraint is, in a great variety of shapes, capable of being employed in the character of a punishment. As a punishment, restraint is not incapable of being employed for the purpose of securing submission to restraint. But in this case, the coincidence is but verbal, and arises from the generality of the word restraint. In the character of a punishment, we cannot employ the restraint collaterally resulting from the negative act, the production of which is the object of the prohibition in the character of the eventual punishment, to secure obedience to that same prohibitive law. To prevent a man from stealing, a law threatening to prevent him from stealing, would be but an indifferent resource. To secure, by means of eventual punishment, restraint in this shape, you must employ restraint in some other shape; for example, the restraint attached to imprisonment.
Between compulsion and punishment, the relation is of this sort. In the case of compulsion, as in the case of restraint, the act in question is the act which is regarded as the efficient cause of the evil, the prevention of which is the ultimate object of the act of punishment. What restraint is, in the case when the act in question is of the positive cast, compulsion is, in the case when the act is of the negative cast.
Between torture and punishment, the relation is of this sort. The term torture is employed, and perhaps with nearly equal frequency, in two different senses. In its most extended sense, it is employed to designate pain, especially pain of body, when considered as being intense in its degree, and this without reference to the cause by which it is produced.
In its more restricted sense, being that in which it is most apt to be employed, when considered as the result of law, it is employed to signify pain of body in its degree intense as above, employed in due course of law, or, at any rate, by the hand of power, in the character of an instrument of compulsion.
But the account given of it, when employed in this sense, wants much, as yet, of being complete. The compulsion, or constraint, may be produced by the mere apprehension of the punishment which is denounced.
By this circumstance, torture stands distinguished not only from compulsion itself, but from any lot of punishment considered as applied to the purpose of compulsion in the ordinary mode.
The notion of torture is not included in a punishment attached to an act of disobedience, of which no remission is allowed; but suppose the same lot of pain attached to the same offence, with power to remit any part of it, in case of, and immediately upon compliance with the requisition of the law, and here the punishment comes under the notion and denomination of torture.
Between compensation, or satisfaction and punishment, the relation is of this sort: in all cases, if compensation be the end in view, so far as concerns pecuniary compensation, by whatsoever is done for the purpose of compensation, the effect of pecuniary punishment is produced likewise. More suffering, however, will in general be produced by what is taken for the purpose of compensation, than if the same amount were taken for the purpose of punishment: it will be accompanied by the regret produced by the idea of the advantage not only reaped by an adversary, but reaped at one’s own expense.
On the other hand, by the contemplation of the suffering inflicted by punishment on the delinquents, good in the shape of compensation, or say vindictive satisfaction, is administered to the party injured.
Between taxation and punishment of the pecuniary kind, for it is only in this form that they can be compared, the relation is of this sort; they both consist in the application of compulsion to the extracting out of the pocket in question a certain sum; the difference between them consists in the end in view. In the case of taxation, the object is the obtainment of a certain sum; in the case of punishment, the object is the prevention of the obnoxious act, to the commission of which the obligation of paying the money is attached in the character of a punishment. In the case of taxation, the wish of the legislator is, that the money may be paid; and, consequently, if it be to the performance of a certain act that the obligation of paying the money is annexed, his wish is that the act may be performed.
As in the two cases the result intended is opposite, the actual results are accordingly incompatible, in so far as either result is obtained, the other is missed. Whether the effect of any given law shall be taxation, or effectual prohibition, depends, in the instance of each individual, upon the value, which, in the case in question, he is called upon to pay, compared with the value in his estimation of the advantage which stands annexed to the exercise of the act; if the advantage appear the greater, he pays the money and exercises the act; if the value of the money to be eventually paid appear the greater, he obeys the prohibitory law, and abstains from the performance of the act.
When the face assumed by any law is that of a prohibition, if the penalty be nothing but pecuniary and the amount is fixed, while the profits of the offence are variable, the probability is, that in many instances the penalty, even if levied, which could not be without detection, prosecution, and conviction, would but operate as a taxed licence.
This circumstance is so obvious, that one would have thought it could not have been overlooked; had it, however, been observed with any tolerable steadiness in England, the law of that country would wear a face widely different from that which it wears at present.
In relation to all these several results or concomitants* of punishment, one observation useful to be borne in mind, that it may operate as a preservative against much error, is — that it is but in very few, if any of these instances, that from the name by which the object is here designated, any true judgment can be formed on any such question as whether and how far the object is a fit object of pursuit or aim in the character of an end.
Take any one of them for example — if taken by itself that object be of the nature of good, yet, in the first place, that good may be in any degree minute; in the next place, to the quantity of evil with which it may happen to it to be followed, there are no limits: and thus it is that false must be that proposition, which, without leaving room for exceptions, should pronounce the attainment of that object to be universally an end fit to be aimed at, whether through the intervention of punishment, or any other means; and conversely.
Of the distinctions here pointed out between punishment and the several objects that are of kin to it, five distinguishable practical uses may be made.
1. They may serve as a memento to the legislator, to see on every occasion, that for the several objects which may have place, and present a demand for legislative provision, due and adequate provision is accordingly made.
2. To preserve him from the delusion which would have place, wheresoever it happens that by one and the same lot of evil, due and adequate provision may be made for two or more of these purposes, if by the difference of their respective denominations, he were led to give birth to two or more lots of evil for the purpose of effecting the good, for the effectuation of which one of them would suffice.
3. That in each instance, in comparing the end he has in view with the means which he proposes to employ for the attainment of it, the view he takes of such proposed means may be sufficiently clear, correct, and complete, to enable him to form a correct judgment of the mode and degree in which they promise to be conducive to the attainment of the end.
4. That he may be upon his guard against that sort of rhetorical artifice which operates by substituting for the proper name of the object or result in question, according to the purpose in view, the name of some other object or result, the name of which is either more or less popular than the proper one.
5. That while in pursuit of any one of these objects, in the character of an end, he employs such means as to his conception appear conducive to that end, he may be correctly and completely aware of any tendency which such arrangements may have to be conducive or obstructive, with reference to any other of these same ends.
In a former work it has been shown,* that offences against individuals may be ranged under four principal heads; offences against the person, property, reputation, and condition. The same division may be applied to punishments; an individual can only be punished by affecting his person, his property, his reputation, or his condition.
The circumstance which renders these two classifications similar is this — punishments and offences are both evils caused by the free agency of man. In as many points as we are liable to be injured by the hand of an offender, in so many points is the offender himself exposed to the sword of justice. The difference between punishments and offences is not, then, in their nature, which is, or may be, the same; but in the legality of the one, and the illegality of the other, offences are prohibited, punishments are instituted by the laws. Their effects also are diametrically opposite. An offence produces an evil both of the first and second order;† it causes suffering in an individual which he was unable to avoid, and it spreads an alarm more or less general. A punishment produces an evil of the first order, and a good of the second order. It inflicts suffering upon an individual who has incurred it voluntarily, and in its secondary effects it produces only good: it intimidates the ill-disposed, it reassures the innocent, and becomes the safeguard of society.
Those punishments which immediately affect the person in its active or passive powers, constitute the class of corporal punishments: they may be divided into the following different kinds:—
Simply afflictive punishments.
Complexly afflictive punishments.
Active or laborious punishments.
Punishments which affect property, reputation, or condition, possess this quality in common, they deprive the individual of some advantage which he before enjoyed; such are privative punishments, losses, and forfeitures. The punishments of this class are very various; they extend to every possible kind of possession.
Hence we perceive that all punishments may be reduced to two classes.
1. Corporal punishments.
2. Privative punishments, or punishments by loss or forfeiture.
When any act has been committed which is followed, or threatens to be followed, by such effects as a provident legislator would be anxious to prevent, two wishes naturally and immediately suggest themselves to his mind: first, to obviate the danger of the like mischief in future: secondly, to compensate the mischief that has already been done.
The mischief likely to ensue from acts of the like kind may arise from either of two sources — either the conduct of the party himself who has been the author of the mischief already done, or the conduct of such other persons as may have adequate motives and sufficient opportunities to do the like.
Hence the prevention of offences divides itself into two branches: Particular prevention, which applies to the delinquent himself; and general prevention, which is applicable to all the members of the community without exception.
Pain and pleasure are the great springs of human action. When a man perceives or supposes pain to be the consequence of an act, he is acted upon in such a manner as tends, with a certain force, to withdraw him, as it were, from the commission of that act. If the apparent magnitude, or rather value* of that pain be greater than the apparent magnitude or value of the pleasure or good he expects to be the consequence of the act, he will be absolutely prevented from performing it. The mischief which would have ensued from the act, if performed, will also by that means be prevented.
With respect to a given individual, the recurrence of an offence may be provided against in three ways:—
1. By taking from him the physical power of offending.
2. By taking away the desire of offending.
3. By making him afraid of offending.
In the first case, the individual can no more commit the offence; in the second, he no longer desires to commit it; in the third, he may still wish to commit it, but he no longer dares to do it. In the first case, there is a physical incapacity; in the second, a moral reformation; in the third, there is intimidation or terror of the law.
General prevention is effected by the denunciation of punishment, and by its application, which, according to the common expression, serves for an example. The punishment suffered by the offender presents to every one an example of what he himself will have to suffer, if he is guilty of the same offence.
General prevention ought to be the chief end of punishment, as it is its real justification. If we could consider an offence which has been committed as an isolated fact, the like of which would never recur, punishment would be useless. It would be only adding one evil to another. But when we consider that an unpunished crime leaves the path of crime open, not only to the same delinquent, but also to all those who may have the same motives and opportunities for entering upon it, we perceive that the punishment inflicted on the individual becomes a source of security to all. That punishment which, considered in itself, appeared base and repugnant to all generous sentiments, is elevated to the first rank of benefits, when it is regarded not as an act of wrath or of vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the common safety.
With respect to any particular delinquent, we have seen that punishment has three objects: incapacitation, reformation, and intimidation. If the crime he has committed is of a kind calculated to inspire great alarm, as manifesting a very mischievous disposition, it becomes necessary to take from him the power of committing it again. But if the crime, being less dangerous, only justifies a transient punishment, and it is possible for the delinquent to return to society, it is proper that the punishment should possess qualities calculated to reform or to intimidate him.
After having provided for the prevention of future crimes, reparation still remains to be made, as far as possible, for those which are passed, by bestowing a compensation on the party injured; that is to say, bestowing a good equal to the evil suffered.
This compensation, founded upon reasons which have been elsewhere developed,† does not at first view appear to belong to the subject of punishments, because it concerns another individual than the delinquent. But these two ends have a real connexion. There are punishments which have the double effect of affording compensation to the party injured, and of inflicting a proportionate suffering on the delinquent; so that these two ends may be effected by a single operation. This is, in certain cases, the peculiar advantage of pecuniary punishments.
All punishment being in itself evil, upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.
It is plain, therefore, that in the following cases punishment ought not to be inflicted:— 1. Where it is groundless: 2. Where it must be inefficacious; because it cannot act so as to prevent the mischief: 3. Where it is unprofitable or too expensive: 4. Where it is needless; because the mischief may be prevented or cease of itself without it.
1. Where there has never been any mischief, as in the case of consent: such consent, provided it be free and fairly given, being the best proof that can be obtained, that at least no immediate mischief upon the whole has been done to the party who gives it.
2. Where the mischief is outweighed by the production of a benefit of greater value, as in precautions against instant calamity, and the exercise of domestic, judicial, military, and supreme powers.
These are, 1. Where the penal provision is not established until after the act is done. Such are the cases of an ex post facto law, and of a sentence beyond the law. 2. Where the penal provision, though established, is not conveyed to the notice of the person on whom it is intended to operate, as from want of due promulgation. 3. Where the penal provision, though it were conveyed to the individual’s notice, could produce no effect with respect to preventing his engaging in the act prohibited; as in the cases of extreme infancy, insanity, and intoxication. 4. Where the penal provision, though present to the party’s notice, does not produce its effect, because he knows not the act he is about to engage in is of the number of those to which the penal provision relates. 5. Where, though the penal clause might exert a full and prevailing influence were it to act alone, yet by the predominant influence of some opposite cause upon the will, such as physical danger or threatened mischief, it must necessarily be ineffectual. 6. Where, though the penal clause may exert a full and prevailing influence over the will of the party, yet his physical faculties (owing to the predominant influence of some physical cause) are not in a condition to follow the determination of his will: insomuch that the act is absolutely involuntary, as through compulsion or restraint.
If the evil of the punishment exceed the evil of the offence, the punishment will be unprofitable: the legislator will have produced more suffering than he has prevented; he will have purchased exemption from one evil at the expense of a greater.
The evil resulting from punishment divides itself into four branches:— 1. The evil of coercion 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. 2. The evil of apprehension, or the pain which a man, who has exposed himself to punishment, feels at the thoughts of undergoing it. 3. The evils of sufferance, or the pain which a man feels, in virtue of the punishment itself, from the time when he begins to undergo it. 4. The pain of sympathy, and the other derivative evils resulting to the persons who are in connexion with those who suffer from the preceding causes.
A punishment is needless, where the purpose of putting an end to the practice may be attained as effectually at a cheaper rate, by instruction, for instance, as well as by terror; by informing the understanding, as well as by exercising an immediate influence on the will. This seems to be the case with respect to all those offences which consist in the disseminating pernicious principles in matters of duty, of whatever kind the duty may be, whether political, moral, or religious: and this, whether such principles be disseminated under, or even without a sincere persuasion of their being beneficial. I say even without; for though, in such a case, it is not instruction that can prevent the individual from endeavouring to inculcate his principles, yet it may prevent others from adopting them: without which, the endeavours to inculcate them will do no harm. In such a case, the sovereign will commonly have little occasion to take an active part: if it be the interest of one individual to inculcate opinions that are pernicious, it will surely be the interest of other individuals to expose them. But if the sovereign must needs take a part in the controversy, the pen is the proper weapon wherewith to combat error, and not the sword.
On the other hand, as to the evil of the offence, this will, of course, be greater or less according to the nature of each offence. The proportion between the one evil and the other will therefore be different in the case of each particular offence. The cases, therefore, where punishment is unprofitable on this ground, can by no other means be discovered, than by an examination of each particular offence.
These considerations ought at all times to be present to the mind of the legislator, whenever he establishes any punishment. It is from them that he will derive his principal reasons for general amnesties, on account of the multitude of delinquents; for the preservation of a delinquent, whose talents could not be replaced, or whose punishment would excite the public displeasure, or the displeasure of foreign powers.
Expense of Punishment.— This expression, which has not yet been introduced into common use, may at first sight be accused of singularity and pedantry. It has, however, been chosen upon reflection, as the only one which conveys the desired idea, without conveying at the same time an anticipated judgment of approbation or disapprobation. The pain produced by punishments, is as it were a capital hazarded in expectation of profit. This profit is the prevention of crimes. In this operation, every thing ought to be taken into the calculation of profit and loss; and when we estimate the profit, we must subtract the loss, from which it evidently results, that the diminution of the expense, or the increase of the profit, equally tend to the production of a favourable balance.
The term expense, once admitted, naturally introduces that of economy or frugality. The mildness or the rigour of punishments is commonly spoken of: these terms include a prejudice in the one case of favour, in the other of disfavour, which prevents impartiality in their examination. But to say that a punishment is economic, is to use the language of reason and calculation.
We should say, then, that a punishment is economic, when the desired effect is produced by the employment of the least possible suffering. We should say that it is too expensive, when it produces more evil than good; or when it is possible to obtain the same good by means of a less punishment.
In this place, distinction should be made between the real and the apparent value of a punishment.
By the real value, I mean that which it would be found to have by one who, like the legislator, is in a condition accurately to trace and coolly to estimate it through all its parts, exempt from the delusions which are seen to govern the uninformed and unthinking part of mankind; knowing, beforehand, upon general principles, what the delinquent will know afterwards by particular experience.
By the apparent value of a punishment, I mean that which it appears to a delinquent to have at any time previous to that in which he comes to experience it; or to a person under temptation to become a delinquent previous to the time at which, were he to become so, he would experience it.
The real value of the punishment constitutes the expense. The apparent value influences the conduct of individuals. It is the real punishment that is the expense — the apparent punishment that gives the profit.
The profit of punishments has reference to the interests of two parties — the public, and the party injured. The expense of the punishment adds to this number a third interest, that of the delinquent.
It ought not to be forgotten, although it has been too frequently forgotten, that the delinquent is a member of the community, as well as any other individual — as well as the party injured himself; and that there is just as much reason for consulting his interest as that of any other. His welfare is proportionably the welfare of the community — his suffering the suffering of the community. It may be right that the interest of the delinquent should in part be sacrificed to that of the rest of the community; but it never can be right that it should be totally disregarded. It may be prudent to hazard a great punishment for the chance of obtaining a great good: it would be absurd to hazard the same punishment where the chance is much weaker, and the advantage much less. Such are the principles which direct men in their private speculations: why should they not guide the legislator?
Ought any real punishments to be inflicted? most certainly. Why? for the sake of producing the appearance of it. Upon the principle of utility, except as to so much as is necessary for reformation and compensation, for this reason, and for no other whatever. Every particle of real punishment that is produced, more than what is necessary for the production of the requisite quantity of apparent punishment, is just so much misery run to waste. Hence the real punishment ought to be as small, and the apparent punishment as great as possible. If hanging a man in effigy would produce the same salutary impression of terror upon the minds of the people, it would be folly or cruelty ever to hang a man in person.*
If delinquents were constantly punished for their offences, and nobody else knew of it, it is evident that, excepting the inconsiderable benefit which might result in the way of disablement, or reformation, there would be a great deal of mischief done, and not the least particle of good. The real punishment would be as great as ever, and the apparent would be nothing. The punishment would befal every offender as an unforeseen evil. It would never have been present to his mind to deter him from the commission of crime. It would serve as an example to no one.
Delinquents may happen to know nothing of the punishment provided for them in either of two cases:— 1. When it is inflicted without having been previously made known; 2. When, though promulgated, it has not been made known to the individual. The latter of these cases may be the case where the punishment is appointed by statute, or, as it is called, written law. The former must happen in all new cases where the punishment is appointed in the way of common or unwritten law.
The punishment appointed by the law, may be presented to the mind in two ways:— 1. By its legal denunciation and description; 2. By its public execution, when it is inflicted with suitable notoriety.
The notion entertained of a punishment ought to be exact, or, as the logicians would say, adequate; that is, it should present to the mind not only a part, but the whole of the sufferings it includes. The denunciation of a punishment ought therefore to include all the items of which it is composed, since that which is not known cannot operate as a motive.
Hence we may deduce three important maxims:—
1. That a punishment that is more easily learnt, is better than one that is less easily learnt.
2. That a punishment that is more easily remembered, is better than one that is less easily remembered.
3. That a punishment that appears of greater magnitude, in comparison of what it really is, is better than one that appears of less magnitude.
“. . . . . . . Adsit
Regula, peccatis quæ pœnas irroget æquas.
Ne scutica dignum, horribili sectere flagello.”
Hor.L. I. Sat. iii.
Establish a proportion between crimes and punishments, has been said by Montesquieu, Beccaria, and many others. The maxim is, without doubt, a good one; but whilst it is thus confined to general terms, it must be confessed it is more oracular than instructive. Nothing has been accomplished, till wherein this proportion consists has been explained, and the rules have been laid down by which it may be determined that a certain measure of punishment ought to be applied to a certain crime.
Punishments may be too small or too great; and there are reasons for not making them too small, as well as for not making them too great. The terms minimum and maximum may serve to mark the two extremes of this question, which require equal attention.
With a view of marking out the limits of punishment on the side of the first of these extremes, we may lay it down as a rule —
I. That 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.
By the profit of the crime, must be understood not only pecuniary profit, but every advantage, real or apparent, which has operated as a motive to the commission of the crime.
The profit of the crime is the force which urges a man to delinquency: the pain of the punishment is the force employed to restrain him from it. If the first of these forces be the greater, the crime will be committed;* if the second, the crime will not be committed. If, then, a man, having reaped the profit of a crime, and undergone the punishment, finds the former more than equivalent to the latter, he will go on offending for ever; there is nothing to restrain him. If those, also, who behold him, reckon that the balance of gain is in favour of the delinquent, the punishment will be useless for the purposes of example.
The Anglo-Saxon laws, which fixed a price upon the lives of men — 200 shillings for the murder of a peasant, six times as much for that of a nobleman, and thirty-six times as much for that of the king — evidently transgressed against this rule. In a great number of cases, the punishment would appear nothing, compared with the profit of the crime.
The same error is committed whenever a punishment is established which reaches only to a certain fixed point, which the advantage of the crime may surpass.
Authors of celebrity have been found desirous of establishing a rule precisely the reverse: they have said, that the greatness of temptation is a reason for lessening the punishment; because it lessens the fault; because the more powerful the seduction, the less reason is there for concluding that the offender is depraved. Those, therefore, who are overcome, in this case, naturally inspire us with commiseration.*
This may all be very true, and yet afford no reason for departing from the rule. That it may prove effectual, the punishment must be more dreaded than the profit of the crime desired. Besides, an inefficacious punishment is doubly mischievous; — mischievous to the public, since it permits the crime to be committed — mischievous to the delinquent, since the punishment inflicted upon him is just so much misery in waste. What should we say to the surgeon, who, that he might save his patient a small degree of pain, should only half cure him? What should we think of his humanity, if he should add to his disease the torment of a useless operation?
It is therefore desirable that punishment should correspond to every degree of temptation; at the same time, the power of mitigation might be reserved in those cases where the nature of the temptation itself indicates the absence of confirmed depravity, or the possession of benevolence — as might be the case should a father commit a theft that he might supply his starving family with bread.†
Rule. II. —The greater the mischief of the offence, the greater is the expense it may be worth while to be at, in the way of punishment.
This rule is so obvious in itself, that to say any thing in proof of it would be needless; but how few are the instances in which it has been observed? It is not long since that women were condemned to be burnt alive for uttering bad money. The punishment of death is still lavished on a multitude of offences of the least mischievous description. The punishment of burning is still in use in many countries for offences which might safely be left to the restraint of the moral sanction. If it can be worth while to be at the expense of so terrible a punishment as that of burning alive, it ought to be reserved for murder or incendiarism.
It will be said, perhaps, that the intention of legislators has always been to follow this rule, but that their opinions, as well as those of the people, have fluctuated respecting the relative magnitude and nature of crimes. At one period, witchcraft was regarded as the most mischievous offence. Sorcerers, who sold their souls to the devil, were objects of abhorrence. A heretic, the enemy of the Almighty, drew down divine wrath upon a whole kingdom. To steal property consecrated to divine uses was an offence of a more malignant nature than ordinary theft, the crime being directed against the Divinity. A false estimate being made of these crimes, an undue measure of punishment was applied to them.
Rule III. —When two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less.
Two offences may be said to be in competition, when it is in the power of an individual to commit both. When thieves break into a house, they may execute their purpose in different manners: by simply stealing, by theft accompanied with bodily injury, or murder, or incendiarism. If the punishment is the same for simple theft, as for theft and murder, you give the thieves a motive for committing murder, because this crime adds to the facility of committing the former, and the chance of impunity when it is committed.
The great inconvenience resulting from the infliction of great punishments for small offences, is, that the power of increasing them in proportion to the magnitude of the offence is thereby lost.‡
Rule IV. —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.
Thus, for example, in adjusting the punishment for stealing a sum of money, let the magnitude of the punishment be determined by the amount of the sum stolen. If for stealing ten shillings an offender 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.
The last object is, whatever mischief is guarded against, to guard against it at as cheap a rate as possible; therefore —
Rule V. —The punishment ought in no case to be more than what is necessary to bring it into conformity with the rules here given.
Rule VI. —That the quantity of punishment 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 the account.
The same nominal punishment is not, for different individuals, the same real punishment. Let the punishment in question be a fine: the sum that would not be felt by a rich man, would be ruin to a poor one. The same ignominious punishment that would fix an indelible stigma upon a man of a certain rank, would not affect a man of a lower rank. The same imprisonment that would be ruin to a man of business, death to an old man, and destruction of reputation to a woman, would be as nothing, or next to nothing, to persons placed in other circumstances.
The law may, by anticipation, provide that such or such a degree of mitigation shall be made in the amount of the punishment, in consideration of such or such circumstances influencing the sensibility of the patient; such as age, sex, rank, &c. But in these cases, considerable latitude must be left to the judge.*
Of the above rules of proportion, the four first may serve to mark out the limits on the minimum side — the limits below which a punishment ought not to be diminished; the fifth will mark out the limits on the maximum side — the limits above which it ought not to be increased.
The minimum of punishment is more clearly marked than its maximum. What is too little is more clearly observed than what is too much. What is not sufficient is easily seen, but it is not possible so exactly to distinguish an excess: an approximation only can be attained. The irregularities in the force of temptations compel the legislator to increase his punishments, till they are not merely sufficient to restrain the ordinary desires of men, but also the violence of their desires when unusually excited.
The greatest danger lies in an error on the minimum side, because in this case the punishment is inefficacious; but this error is least likely to occur, a slight degree of attention sufficing for its escape; and when it does exist, it is at the same time clear and manifest, and easy to be remedied. An error on the maximum side, on the contrary, is that to which legislators and men in general are naturally inclined: antipathy, or a want of compassion for individuals who are represented as dangerous and vile, pushes them onward to an undue severity. It is on this side, therefore, that we should take the most precautions, as on this side there has been shown the greatest disposition to err.
By way of supplement and explanation to the first rule, and to make sure of giving to the punishment the superiority over the offence, the three following rules may be laid down:—
Rule VII. —That the value of the punishment may outweigh the profit of the offence, it must be increased in point of magnitude, in proportion as it falls short in point of certainty.
Rule VIII. —Punishment must be further increased in point of magnitude, in proportion as it falls short in point of proximity.
The profit of a crime is commonly more certain than its punishment; or, what amounts to the same thing, appears so to the offender. It is generally more immediate: the temptation to offend is present; the punishment is at a distance. Hence there are two circumstances which weaken the effect of punishment, its uncertainty and its distance.
Suppose the profit of a crime equal to £20 sterling; suppose the chance of punishment as one to two. It is clear, that if the punishment, supposing that it were to take place, is not more than £10 sterling, its effect upon a man’s mind whilst it continues uncertain, is not equal to a certain loss of £10 sterling: it is only equal to a certain loss of £5 sterling. That it may be rendered equal to the profit of the crime, it must be raised to £20.
Unless men are hurried on by outrageous passion, they do not engage in the career of crime without the hope of impunity. If a punishment were to consist only in taking from an offender the fruit of his crime, and this punishment were infallible, there would be no more such crimes committed; for what man would be so insensate as to take the trouble of committing a crime with the certainty of not enjoying its fruits, and the shame of having attempted it? But as there are always some chances of escape, it is necessary to increase the value of the punishment, to counterbalance these chances of impunity.
It is therefore true, that the more the certainty of punishment can be augmented, the more it may be diminished in amount. This is one advantage resulting from simplicity of legislation, and excellence of legal procedure.
For the same reason, it is necessary that the punishment should be as near, in point of time, to the crime, as possible; because its impression upon the minds of men is weakened by distance; and because this distance adds to the uncertainty of its infliction, by affording fresh chances of escape.
Rule IX. —When 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.
Severe as this conjectural calculation may appear, it is absolutely necessary in some cases. Of this kind are fraudulent crimes; using false weights or measures, and issuing base coin. If the coiner was only punished according to the value of the single crime of which he is convicted, his fraudulent practice would, upon the whole, be a lucrative one. Punishment would therefore be inefficacious, if did not bear a proportion to the total gain which may be supposed to have been derived, not from one particular act, but from a train of actions of the same kind.
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 are worth putting on a level with the others.
Rule X. —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 XI. —In particular, this may 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.
Rule XII. —In adjusting the quantum of punishment, the circumstances by which all punishment may be rendered unprofitable ought to be attended to.
And lastly, as too great a nicety in establishing proportions between punishment and crime would tend to defeat its own object, by rendering the whole matter too complex, we may add —
Rule XIII. —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.
The observation of rules of proportion between crimes and punishments has been objected to as useless, because they seem to suppose, that a spirit of calculation has place among the passions of men, who, it is said, never calculate. But dogmatic as this proposition is, it is altogether false. In matters of importance, every one calculates. Each individual calculates with more or less correctness, according to the degrees of his information, and the power of the motives which actuate him; but all calculate. It would be hard to say that a madman does not calculate. Happily, the passion of cupidity, which on account of its power, its constancy, and its extent, is most formidable to society, is the passion which is most given to calculation. This, therefore, will be more successfully combated, the more carefully the law turns the balance of profit against it.
It has been shown what rules ought to be observed in adjusting the proportion between punishment and offences. The properties to be given to a lot of punishment in every instance will of course be such as it stands in need of, in order to be capable of being applied in conformity to those rules: the quality will be regulated by the quantity.
The first quality desirable in a lot of punishment is variability; that it be susceptible of degrees both of intensity and duration.
An invariable punishment cannot be made to correspond to the different degrees of the scale of punishment; it will be liable to err either by excess or defect: in the first case, it would be too expensive; in the second, inefficacious.
Acute corporeal punishments are extremely variable in respect of intensity, but not of duration. Penal labour is variable in both respects, in nearly equal degrees.
Chronic punishments, such as banishment and imprisonment, may be easily divided as to their duration: they may also be varied as to their intensity. A prison may be more or less severe: banishment may be directed to a genial or ungenial clime.
A second property, intimately connected with the former, may be styled equability. It will avail but little, that a mode of punishment (proper in all other respects) has been established by the legislature, and that capable of being screwed up or let down to any degree that can be required, if, after all, whatever degree of it be pitched upon, that same degree shall be liable, according to circumstances, to produce a very heavy degree of pain, or a very slight one, or even none at all. An equable punishment is free from this irregularity: an unequable one is liable to it.
Banishment is unequable: it may either prove a punishment or not, according to the temper, the age, the rank, or the fortune of the individuals. This is also the case with pecuniary or quasi pecuniary punishment, when it respects some particular species of property which the offender may or may not possess. By the English law, there are several offences which are punished by a total forfeiture of moveables, not extending to immoveables. In some cases, this is the principal punishment: in others, even the only one. The consequence is, that if a man’s fortune happen to consist in moveables, he is ruined; if in immoveables, he suffers nothing.
In the absence of other punishment, it may be proper to admit an unequable punishment. The chance of punishing some delinquents is preferable to universal impunity.
One mode of obviating the evil of inequality consists in the providing of two different species of punishment, not to be used together, but that the one may be substituted for, and supply the defects of the other: for example, corporeal may be substituted for pecuniary punishment, when the poverty of the individual prevents the application of the latter.
An uncertain punishment is unequable. Complete certainty supposes complete equability; that is to say, that the same punishment shall produce in every case the same degree of suffering. Such accuracy is, however, evidently unattainable, the circumstances and sensibility of individuals being so variable and so unequal. All that can be accomplished is to avoid striking and manifest inequality. In the preparation of a penal code, it ought constantly to be kept in view, that according to circumstances, of condition, fortune, age, sex, &c. the same nominal is not the same real punishment. A fixed fine is always an unequable punishment; and the same remark is applicable to corporeal punishments. Whipping is not the same punishment when applied to all ages and ranks of persons. In China, indeed, every one is submitted to the bamboo, from the water-carrier to the mandarin; but this only proves, that among the Chinese the sentiments of honour are unknown.
Punishments are commensurable, when the penal effects of each can be measured, and a distinct conception formed, of how much the suffering produced by the one falls short of or exceeds that produced by another. Suppose a man placed in a situation to choose between several crimes:— he can obtain a sum of money by theft, by murder, or by arson: the law ought to give him a motive to abstain from the greatest crime; he will have that motive, if he see that the greatest crime draws after it the greatest punishment: he ought, therefore, to be able to compare these punishments among themselves, and measure their different degrees.
If the same punishment of death is denounced for these three crimes, there is nothing to compare; the individual is left free to choose that crime which appears most easy of execution, and least liable to be detected.
Punishments may be made commensurable in two ways: 1. By adding to a certain punishment another quantity of the same kind; for example, to five years of imprisonment for a certain crime, two more years for a certain aggravation: 2. By adding a punishment of a different kind; for example, to five years of imprisonment for a certain crime, a mark of disgrace for a certain aggravation.
Punishment can act as a preventative only when the idea of it, and of its connexion with the crime, is present to the mind. Now, to be present, it must be remembered; and to be remembered, it must have been learnt. But of all punishments that can be imagined, there are none of which the connexion with the offence is either so easily learnt, or so efficaciously remembered, as those of which the idea is already in part associated with some part of the offence, which is the case when the one and the other have some circumstance that belongs to them in common.
The law of retaliation is admirable in this respect. An eye for an eye, and a tooth for a tooth. The most imperfect intelligence can connect these ideas. This rule of retaliation is, however, rarely practicable: it is too unequable and too expensive; recourse must therefore be had to other sources of analogy. We shall therefore recur to this subject in the next chapter.
A mode of punishment is exemplary in proportion to its apparent, not to its real magnitude. It is the apparent punishment that does all the service in the way of example. A real punishment, which should produce no visible effects, might serve to intimidate or reform the offender subjected to it; but its use, as an example to the public, would be lost.
The object of the legislator ought therefore to be, so far as it may be safely practicable, to select such modes of punishment as, at the expense of the least real, shall produce the greatest apparent suffering; and to accompany each particular mode of punishment with such solemnities as may be best calculated to further this object.
In this point of view, the auto-da-fés would furnish most useful models for acts of justice. What is a public execution? It is a solemn tragedy, which the legislator presents before an assembled people — a tragedy truly important, truly pathetic, by the sad reality of its catastrophe, and the grandeur of its object. The preparation for it, the place of exhibition, and the attendant circumstances, cannot be too carefully selected, as upon these the principal effect depends. The tribunal, the scaffold, the dresses of the officers of justice, the religious service, the procession, every kind of accompaniment, ought to bear a grave and melancholy character. The executioners might be veiled in black, that the terror of the scene might be heightened, and these useful servants of the state screened from the hatred of the people.
Care must however be taken lest punishment become unpopular and odious through a false appearance of rigour.
If any mode of punishment is more apt than another to produce superfluous and needless pain, it may be styled unfrugal; if less, it may be styled frugal. The perfection of frugality in a mode of punishment, is where not only no superfluous pain is produced on the part of the person punished, but even that same operation, by which he is subjected to pain, is made to answer the purpose of producing pleasure on the part of some other person.
Pecuniary punishments possess this quality in an eminent degree: nearly all the evil felt by the party paying, turns to the advantage of him who receives.
There are some punishments which, with reference to the public expense, are particularly unfrugal: for example, mutilations, applied to offences of frequent occurrence, such as smuggling. When an individual is rendered unable to work, he must be supported by the state, or rendered dependent upon public charity, and thus fixed as a burthen upon the most benevolent.
If the statement of Filangieri is correct, there were constantly in the state-prisons of Naples more than forty thousand idle prisoners. What an immense loss of productive power! The largest manufacturing town in England scarcely employs a greater number of workmen.
By the military laws of most countries, deserters are still condemned to death. It costs little to shoot a man; but every thing which he might be made to produce, is lost; and to supply his place, a productive labourer must be converted into an unproductive one.
All punishment has a certain tendency to deter from the commission of offences; but if the delinquent, after he has been punished, is only deterred by fear from the repetition of his offence, he is not reformed. Reformation implies a change of character and moral dispositions.
Hence those punishments which are calculated to weaken the seductive, and to strengthen the preserving motives, have an advantage over all others with respect to those offences to which they can be applied.
There are other punishments which have an opposite tendency, and which serve to render those who undergo them still more vicious. Punishments which are considered infamous, are extremely dangerous in this respect, particularly when applied to slight offences and juvenile offenders. Diligentius enim vivit, cui aliquid integri superest. Nemo dignitati perditæ parcit. Impunitatis genus est jam non habere pœnæ locum.*
Of this nature also, in a high degree, is the punishment of imprisonment, when care is not taken to prevent the indiscriminate association of prisoners, but the juvenile and the hoary delinquents are allowed to meet and to live together. Such prisons, instead of places for reform, are schools of crime.
A punishment which takes away the power of repeating the crime must be very desirable, if not too costly. Imprisonment, whilst it continues, has this effect in a great measure. Mutilation sometimes reduces the power of committing crimes almost to nothing, and death destroys it altogether. It will, however, be perceived, that whilst a man is disabled from doing mischief, he is also in great measure disabled from doing good to himself or others.
In some extraordinary cases, the power of doing mischief can only be destroyed by death: as, for example, the case of civil war, when the mere existence of the head of a party is sufficient to keep alive the hopes and exertions of his partisans. In such a case, however, the guilt of the parties is often problematic, and the punishment of death savours more of vengeance than of law.
There are, however, cases in which the ability to do mischief may be taken away with great economy of suffering. Has the offence consisted in an abuse of power — in an unfaithful discharge of duty? it is sufficient to depose the delinquent, to remove him from the employment, the administration, the guardianship, the trust he has abused. This remedy may equally be employed in domestic and political government.
A further property desirable in a lot of punishment is, that it may be convertible to profit.
When a crime is committed, and afterwards punished, there have existed two lots of evil — the evil of the offence, and the evil of the punishment. Whenever, then, the evil of the offence falls upon a specific person, if the punishment yield a profit, let the profit arising from it be given to that person. The evil of the offence will be removed, and there will then only exist one lot of evil, instead of two. When there is no specific party injured, as when the mischief of the crime consists in alarm or danger, there will be no specific injury to be compensated; still, if the punishment yield a profit, there is a clear balance of good gained.
This property is possessed in a more eminent degree by pecuniary than by any other mode of punishment.
In the rear of all these properties may be introduced that of popularity— a very fleeting and indeterminate kind of property, which may belong to a lot of punishment one moment, and be lost by it the next. This property, in strictness of speech, ought rather to be called absence of unpopularity; for it cannot be expected, in regard to such a matter as punishment, that any species or lot of it should be positively acceptable and grateful to the people: it is sufficient, for the most part, if they have no decided aversion to the thoughts of it.
The use of inserting this property in the catalogue is, that it may serve as a memento to the legislator not to introduce, without a cogent necessity, any mode or lot of punishment towards which any violent aversion is entertained by the body of the people, since it would be productive of useless suffering — suffering borne not by the guilty, but the innocent; and among the innocent, by the most amiable, by those whose sensibility would be shocked, whose opinions would be outraged, by the punishment which would appear to them violent and tyrannical. The effect of such injudicious conduct on the part of a legislator would be to turn the tide of popular opinion against himself: he would lose the assistance which individuals voluntarily lend to the execution of the laws which they approve: the people would not be his allies, but his enemies. Some would favour the escape of the delinquent; the injured would hesitate to prosecute, and witnesses to bear testimony against him. By degrees, a stigma would attach to those who assisted in the execution of the laws. Public dissatisfaction would not always stop here: it would sometimes break out into open resistance to the officers of justice and the execution of such laws. Successful resistance would be considered a victory, and the unpunished delinquent would rejoice over the weakness of the laws disgraced by his triumph.
The unpopularity of particular punishments almost always depends upon their improper selection. The more completely the penal code shall become conformed to the rules here laid down, the more completely will it merit the enlightened approbation of the wise, and the sentimental approval of the multitude.
A mode of punishment ought also to be as simple as possible in its description: it ought to be entirely intelligible; and that not only to the enlightened, but to the most unenlightened and ignorant.
It will not always be proper, however, to confine punishments to those of a simple description: there are many offences in which it will be proper that the punishment should be composed of many parts; as of pecuniary fine, corporal suffering, and imprisonment, The rule of simplicity must give way to superior considerations: it has been placed here, that it may not be lost sight of. The more complex punishment is, the greater reason is there to fear that it will not be present as a whole to the mind of an individual in the time of temptation: of its different parts he may never have known some — he may have forgotten others. All the parts will be found in the real punishment, but they have not been perceived in the apparent.
The name of a punishment is an important object. Enigmatical names spread a cloud over the mass of punishments, which the mind cannot dissipate. The English laws are frequently defective in this respect. A capital felony includes different lots of punishment, the greater part unknown, and consequently inefficacious. A felony with benefit of clergy is equally obscure: the threatening of the law does not convey any distinct idea to the mind; — the first idea which the term would offer to an uninstructed person would be, that it had some reference to a reward. A præmunire is not more intelligible; even those who understand the Latin word are far from comprehending the nature of the punishment which it denounces.
Riddles of this kind resemble those of the sphynx: those are punished who do not decypher them.
Remissibility is the last of all the properties that seem to be requisite in a lot of punishment. The general presumption is, that when punishment is applied, punishment is needful; that it ought to be applied, and therefore cannot be remitted. But in very particular, and those very deplorable cases, it may be accident happen otherwise. Punishment may have been inflicted upon an individual whose innocence is afterwards discovered. The punishment which he has suffered cannot, it is true, be remitted, but he may be freed from as much of it as is yet to come. There is, however, little chance of there being any yet to come, unless it be so much as consists of chronical punishment; such as imprisonment, banishment, penal labour, and the like. So much as consists in acute punishment, where the penal process itself is over presently, however permanent the punishment may be in its effects, may be considered as irremissible. This is the case, for example, with whipping, branding, mutilation, and capital punishment. The most perfectly irremissible of any is capital punishment. In all other cases, means of compensation may be found for the sufferings of the unfortunate victim, but not in this.
The foregoing catalogue of properties desirable in a lot of punishment, is far from unnecessary. On every occasion, before a right judgment can be formed, it is necessary to form an abstract idea of all the properties the object ought to possess. Unless this is done, every expression of approbation or disapprobation can arise only from a confused feeling of sympathy or antipathy. We now possess clear and distinct reasons for determining our choice of punishments. It remains only to observe in what proportion a particular punishment possesses these different qualities.
If a conclusion is drawn from one of these qualities alone, it may be subject to error: attention ought to be paid, not to one quality alone, but to the whole together.
There is no one lot of punishment which unites all these desirable qualities; but, according to the nature of the offences, one set of qualities is more important than another.
For great crimes, it is desirable that punishments should be exemplary and analogous. For lesser crimes, the punishments should be inflicted with a greater attention to their frugality, and their tendency to moral reformation. As to crimes against property, those punishments which are convertible to profit are to be preferred, since they may be rendered subservient to compensation for the party injured.
Note by Dumont.
I subjoin to this chapter an example of the progressive march of thought, and of the utility of these enumerations to which every new observation may be referred, so that nothing may be lost.
I have sought out from the works of Montesquieu all the qualities which he appears to have regarded as necessary in a lot of punishment. I have found only four, and these are either expressed by indefinite terms, or periphrasis:—
1. He says, that Punishments should be drawn from the nature of the crimes; and he appears to mean, that they should be characteristic.
2. That they should be moderate; an expression which is indeterminate, and does not yield any point of comparison.
3. That they should be proportional to the crime. This proportion has reference, however, rather to the quantity of the punishment than to its quality. He has neither explained in what it consists, nor given any rule respecting it.
4. That they should be modest.
Beccaria has mentioned four qualities:—
1. He requires that punishments should be analogous to the crimes; but he does not enter into any detail upon this analogy.
2. That they should be public; and he means by that, exemplary.
3. That they be gentle; an improper and unsignificant term; whilst his observations upon the danger of excess in punishment are very judicious.
4. That they should be proportional; but he gives no rule for this proportion.
He requires, besides this, that they should be certain, prompt, and inevitable; but these circumstances depend upon the forms of procedure in the application of punishment, and not upon its qualities.
In his commentary upon Beccaria, Voltaire often recurs to the idea of rendering punishments profitable:—“A dead man is good for nothing.”
One of the heroes of humanity, the good and amiable Howard, had continually in view the amendment of delinquents.
Confining our attention to those who are considered as oracles in this branch of science, we cannot but observe, that between these scattered ideas, and vague conceptions, which have not yet received a name, and a regular catalogue in which these qualities are distinctly presented to us, with names and definitions, there is a wide interval. By thus placing them under one point of view, another advantage is gained: their true worth and comparative importance is determined. Montesquieu was dazzled by the merit of analogy in a punishment, and has attributed to it wonderful effects which it does not possess. —Esprit des Lois, xii. 4.
These considerations appear to afford a sufficient answer to the objection often raised against the methodic forms employed by Mr. Bentham. I refer to his divisions, tables, and classifications, which have been called his logical apparatus. All this, it has been said, is only the scaffold, which ought to be taken down when the building is erected. But why deprive his readers of the instruments which the author has employed? why hide from them his analytical labours and process of invention? These tables form a machine for thought —organum cogitativum. The author discloses his secret; he associates his readers with him in his labour; he gives them the clue which has guided him in his researches, and enables them to verify his results. The singularity is this — the extent of the service diminishes its value.
I am sensible, that by employing these logical methods as a secret — by not exhibiting, so to speak, the skeleton, the muscles, the nerves, much would be gained in elegance and interest. By using the method of analysis, everything is announced beforehand — there is nothing unexpected; — the whole is clear; and there are no points of surprise — no flashes of genius to dazzle for a moment, and then leave you in darkness. It requires courage to follow up so severe a method, but it is the only method which can completely satisfy the mind.
Analogy is that relation, connexion, or tie, between two objects, whereby the one being present to the mind, the idea of the other is naturally excited.
Likeness is one source of analogy, contrast another.* That a punishment may be analogous to an offence, it is necessary that the crime should be attended with some striking characteristic circumstances, capable of being transferred upon the punishment.
These characteristic circumstances will be different in different crimes. In some cases they may arise from the instrument whereby the mischief has been done; in others, from the object to which the mischief is done; in others, from the means employed to prevent detection.
The examples which follow are only intended clearly to explain this idea of analogy. I shall point out the analogy between certain crimes and certain punishments, without absolutely recommending the employment of those punishments in all cases. It is not a sufficient reason for the adoption of a punishment, that it is analogous: other considerations ought to be always regarded.
The same Instrument used in the Crime as in the Punishment.— Incendiarism, inundation, poisoning: in these crimes, the instrument employed is the first circumstance which strikes the mind. In their punishment, the same instrument may be employed.
With respect to incendiarism, we may observe, that this crime should be considered as limited to those cases in which some individual has perished by fire: if no life has been lost, nor any personal injury been suffered, the offence ought to be treated as an ordinary waste; whether an article of property has been destroyed by fire, or any other agent, does not make any difference. The amount of the damage ought to be the measure of the crime. Does a man set fire to a solitary and uninhabited house? this would be an act of destruction, and ought not to be ranked under the definition of incendiarism.†
If the punishment of fire had been reserved for incendiaries, the law would have had in its favour both reason and analogy; but in the legislation of barbarous times, it has been generally employed throughout Europe, for the crimes of magic and heresy: the first, an offence purely imaginary; the second, a simple difference of religious opinion, perfectly innocent, often useful, and with respect to which, the only effect of punishment is to produce insincerity.
Fire may be employed as an instrument of punishment, without occasioning death. This punishment is variable in its nature through all the degrees of severity of which there can be any need. It would be necessary carefully to determine in the text of the law, the part of the body which ought to be exposed to the action of the fire; the intensity of the fire; the time during which it is to be applied, and the paraphernalia to be employed to increase the terror of the punishment. In order to render the description more striking, a print might be annexed, in which the operation should be represented.
Inundation is an offence less common than incendiarism: in some countries it is altogether unexampled; it can only be perpetrated in countries that are intersected by water confined by artificial banks. It is susceptible of every degree of aggravation, from the highest to the lowest. If the offence consist merely in inundation, in effect it amounts only to a simple destruction of property. It is by the destruction of life that this crime is raised to that degree of atrocity which requires severe punishment.
A most evident analogy points out the means of punishment; that is, the drowning of the criminal, with such accompanying circumstances as will add to the terror of the punishment. In a penal code which should not admit the punishment of death, the offender might be drowned and then restored to life. This might be made a part of the punishment.
It may be asked, ought poison to be employed as a means of punishment for a poisoner?
In some respects there is no punishment more suitable. Poisoning is distinguished from other murders, by the secrecy with which it may be perpetrated, and the cool determination which it supposes. Of these two circumstances, the first increases the force of temptation and the evil of the crime; the second proves that the criminal, attentive to his own interest, is capable of serious reflection upon the nature of the punishment. The idea of perishing by the same kind of death which he prepares, is the more frightful for him: in every step of his preparations, his imagination will represent to him his own lot. In this point of view, the analogy would produce its full effect.
There are, however, many difficulties. Poisons are uncertain in their operation: it would be necessary, therefore, to fix a time after which the punishment should be abridged by strangulation. If the effect of the poison should be to produce sleep, the punishment may not be sufficiently exemplary: if it produce convulsions and distortions, it may prove hateful.
If the poison administered by the criminal has not proved fatal, he may be made to take an antidote before the penal poison has produced death. The dose and the time may be fixed by the Judges, according to the report of skilful physicians.
The horror attached to this crime would most probably render this punishment popular. And if there is one country in which this crime is more common than others, it is there that this punishment, which possesses so striking an analogy with the crime, would be most suitable.
For a Corporal Injury, a similar Corporal Injury.—“An eye for an eye, a tooth for a tooth.” In crimes producing irreparable bodily injuries, the part of the body injured will afford the characteristic circumstance. The analogy will consist in making the offender suffer an evil similar to that which he has maliciously and wilfully inflicted.
It will, however, be necessary to provide for two cases: that in which the offender does not possess the member of which he has deprived the party he has attacked, and that in which the loss of the member would be more or less prejudicial to him than to the party injured.
If the injury has been of an ignominious nature, without permanent mischief, similar ignominy may be employed in the punishment, when the rank of the party and other circumstances permit.
Punishment of the Offending Member.— In crimes of deceit, the tongue and the hand are the usual instruments. An exact analogy in the punishment may be drawn from this circumstance.
In punishing the crime of forgery, the hand of the offender may be transfixed by an iron instrument fashioned like a pen; and in this condition he may be exhibited to the public, previously to undergoing the punishment of imprisonment.
In the utterance of calumny, and the dissemination of false reports, the tongue is the instrument employed. The offender might in the same manner be publicly exposed with his tongue pierced.
These punishments may be made more formidable in appearance than in reality, by dividing the instruments in two parts, so that the part which should pierce the offending member need not be thicker than a pin, whilst the other part of the instrument may be much thicker, and appear to penetrate with all its thickness.
Punishments of this kind may appear ridiculous; but the ridicule which attaches to them enhances their merit. This ridicule will be directed against the cheat, whom it will render more despicable, whilst it will increase the respect due to upright dealing.
Imposition of Disguise Assumed.— Some offences are characterized by the assumption of a disguise to facilitate their commission: a mask, or crape over the face, has commonly been used. This circumstance constitutes an aggravation of the offence: it increases the alarm produced, and diminishes the probability of detection; and hence arises the propriety of additional punishment. Analogy would recommend the imprinting on the offender a representation of the disguise assumed. This impression might be made either evanescent or indelible, according as the imprisonment by which it may be accompanied, is to be either temporary or otherwise. If evanescent, it might be produced by the use of a black wash: if indelible, by tatooing. The utility of this punishment would be most particularly felt in cases of premeditated murder, rape, irreparable personal injury, and theft, when accompanied with violence and alarm.
There are other characteristic circumstances, which do not, like the foregoing, fall into classes; which may, however, according to the nature of the different offences, be employed as a foundation for analogy.
In the fabrication of base coin, the art of the delinquent may furnish an analogous source of punishment. He has made an impression upon the metal he has employed; — a like impression may be made on some conspicuous part of his face. This mark may be either evanescent or indelible, according as the imprisonment by which it is to be accompanied is either temporary or perpetual.
At Amsterdam, vagabonds and idle persons are committed to the House of Correction, called the Rasp House. It is said, that among other species of forced labour in which such characters are employed, there is one reserved for those who are incorrigible by other means: which consists in keeping a leaky vessel, in which the idle prisoner is placed, dry, by means of a pump at which he must work, if he would keep himself from being drowned. Whether this punishment is in use or not, it is an example of an analogous punishment carried to the highest degree of rigour. If such a method of punishment is adopted, it ought to be accompanied with precise regulations for adjusting the punishment to the strength of the individual undergoing it.
The place in which a crime has been committed may furnish a species of analogy. Catherine II. condemned a man who had committed some knavish trick at the Exchange, to sweep it out every day that it was used, during six months.
Note by Dumont.
I am not aware of any objection having been urged against the utility of analogy in punishments: whilst it is spoken of only in general terms, everybody acknowledges its propriety; when we proceed to apply the principle, the imagination being the chief judge of the propriety of its application, the diversity of opinion is infinite. Hence some persons have been struck with extreme repugnance in contemplating the analogous punishments proposed by Mr. Bentham,a whilst others have considered them only as fit subjects for ridicule and caricature.
Success depends upon the choice of the means employed. Those sources of analogy ought therefore to be avoided which are not of a sufficiently grave character to be used as punishments; but it may be observed, that with relation to certain offences, those, for instance, which are accompanied by insolence and insult, that an analogous punishment which excites ridicule, is well calculated to humble the pride of the offender, and gratify the offended party.
Every thing ought also to be avoided which has an appearance of great study and refinement. Punishment ought only to be inflicted of necessity, and with feelings of regret and repugnance. The multitude of instruments possessed by a surgeon, may be contemplated with satisfaction, as intended to promote the cure and lessen the weight of our sufferings. The same satisfaction will not, however, be felt in contemplating a variety of punishments, and they will most likely be considered as degrading to the character of the legislator.
With these precautions, analogy is calculated to produce only good effects. It puts us in the track of discovering the most economical and efficacious punishments. I cannot resist the pleasure of citing an example furnished me by a captain in the English navy: he had not studied the principles of Mr. Bentham, but he knew how to read the human heart.
The leave of absence generally granted to sailors, was for twenty-four hours: if they exceeded this time, the ordinary punishment was the cat-o’-nine-tails. The dread of this punishment was a frequent cause of desertions. Many captains, in order to prevent both these offences, refused all leave of absence to their sailors, so that they were kept on shipboard for years together. The individual to whom I refer, discovered a method of reconciling the granting of leave with the security of the service. He made a simple change in the punishment:— Every man who exceeded his prescribed time of leave, lost his right to a future leave, in proportion to his fault. If he remained on shore more than twenty-four hours, he lost one turn; if more than forty-eight hours, he lost two turns; and so of the rest. The experiment was perfectly successful. The fault became less frequent, and desertions were unknown.
a Traites de Legislation.
If the law of retaliation were admissible in all cases, it would very much abridge the labours of the legislators. It would make short work of the business of laying out a plan of punishment — a word would supply the place of a volume.*
Before we say any thing as to the advantage of the rule, it will be proper to state with precision what is meant by it. The idea given of it in Blackstone’s Commentaries seems to be a correct one; — it is that rule which prescribes, in the way of punishment, the doing to a delinquent the same hurt he has done (one might perhaps add, or attempted to do) to another. If the injury were done to the person, the delinquent should be punished in his person: if to property, in his property: if to the reputation, in his reputation. This is the general scheme; but this, however, in itself, is not quite enough. To make the punishment come incontestibly under the law of retaliation, the identity between the subject of the offence and that of the punishment should be still more specific and determinate. If, for example, the injury were to a man’s house — for instance, by the destruction of his house, then the delinquent should have his house destroyed; if to his reputation, by causing him to lose a certain rank, then the delinquent should be made to lose the same rank; if to the eyes, then the criminal should be made to lose his eyes; if to his lip, then to lose his lip: and, in short, the more specific and particular the resemblance between the subject of the offence and of the punishment, the more strictly and incontestibly it would appear to come under the rule. It is when the person is the subject of the injury, that the resemblance is capable of being rendered the most minute; for it is in this case, that by means of the strict identity of the part affected, “the hurt” is capable of being rendered the most accurately the “same.” An eye for an eye, and a tooth for a tooth, are the familiar instances that are put of the law of retaliation. In this case, too, the identity may be pushed still further, by affecting the same part in the same manner; the sameness of the hurt depending on the identity of the one circumstance as well as of the other. Thus, if the injury consisted in the burning out of an eye, the punishment will be more strictly the same, if it be effected by burning rather than cutting out the eye of the delinquent.
The great merit of the law of retaliation is its simplicity. If it were capable of universal adoption, the whole penal code would be contained in one law:—“Let every offender suffer an evil similar to that which he has inflicted.”
No other imaginable plan can, for its extent, find so easy an entrance into the apprehension, or sit so easy on the memory. The rule is at once so short and so expressive, that he who has once heard it, is not likely to forget it, or ever to think of a crime, but he must think also of its punishment. The stronger the temptation to commit an offence, the more likely is its punishment to be an object of dread. Thus the defence is erected on the side of danger.
One advantage that cannot be denied to this mode of punishment, is its popularity; requiring little expense of thought, it will generally be found to possess the judgment of the multitude in its favour. Should they, in any instance, be disposed to quarrel with it, they will still be ready enough, probably, to own it to be consonant to justice: but that justice, they will say, is rigid justice, or, to vary the jargon, justice in the abstract. All this while, with these phrases on their lips, they would perhaps prefer a milder punishment, as being more consonant to mercy, and, upon the whole, more conducive to the general happiness — as if justice, and especially penal justice, were something distinct from, and adverse to, that happiness. When, however, it happens not to give disgust by its severity, nothing can be more popular than this mode of punishment. This may be seen in the case of murder, with respect to which the attachment to this mode of punishment is warm and general. Blood (as the phrase is) will have blood. Unless a murderer be punished with death, the multitude of speculators can seldom bring themselves to think that the rules of justice are pursued.
The law of retaliation is, however, liable to a variety of objections, one of which, so far as it applies, is conclusive against its adoption. In a great variety of cases, it is physically inapplicable. Without descending far into detail, a few instances may suffice as examples. In the first place, it can never be applied when the offence is merely of a public nature — the characteristic quality of such offences being, that no assignable individual is hurt by them. If a man has been guilty of high treason, or has engaged in criminal correspondence with an enemy, or has, from cowardice, abandoned the defence of a post entrusted to him; how would it be possible to make him suffer an evil similar to that of which he has been the cause?
It is equally inapplicable to offences of the semi-public class — to offences which affect a certain district, or particular class of the community. The mischief of these offences often consists in alarm and danger, which do not affect one individual alone, and therefore do not present any opportunity for the exercise of retaliation.
With respect to self-regarding offences, consisting of acts which offend against morality, the application of this law would be absurd. The individual has chosen to perform the act; to do the same thing to him, would not be to punish him.
In offences against reputation, consisting, for instance, in the propagation of false reports affecting the character, it would be useless as a punishment to direct a similar false report to be propagated affecting the character of the delinquent. The like evil would not result from the circulation of what was acknowledged to be false.
In offences against property, the punishment of retaliation would at all times be defective in point of exemplarity and efficacy, and, in many cases, altogether inapplicable; those who are most apt to injure others in this respect, being, by their poverty, unable to suffer in a similar manner.
For a similar reason, it cannot be constantly applied to offences affecting the civil condition of individuals, to say nothing of the reasons that might render it ineligible, if it were possible to be applied.
These exceptions reduce its possible field of action to a very small extent, the only classes of offences to which it will be found applicable, with any degree of constancy, are those that affect the person; and even here must be assumed, what scarcely ever exists, a perfect identity of circumstances. Even in this very limited class of cases, it would be found to err on the side of excessive severity. Its radical defect is, its inflexibility. The law ought so to apportion the punishment as to meet the several circumstances of aggravation or extenuation that may be found in the offence: retaliation is altogether incompatible with any such apportionment.
The class of people among whom this mode of punishment is most likely to be popular, are those of a vindictive character. Mahomet found it established among the Arabians; and has adopted it in the Koran, with a degree of approbation, that marks the extent of his talent for legislation. —“O you who have a heart, you will find in the law of retaliation, and in the fear that accompanies it, universal security.”—(Vol. I. ch. ii. On the Law.) Either from weakness or ignorance, he encouraged the prevailing vice, which he ought to have checked.
To prove that an institution is agreeable to the principle of utility, is to prove, as far as can be proved, that the people ought to like it: but whether they will like it or no after all, is another question. They would like it if, in their judgments, they suffered themselves to be uniformly and exclusively governed by that principle. By this principle they do govern themselves in proportion as they are humanized and enlightened: accordingly, the deference they pay to its dictates is more uniform in this intelligent and favoured country than perhaps in any other. I speak here, taking the great mass of the people upon this occasion, as they ought to be taken upon every occasion, into the account, and not confining my views, as is too commonly the case, to men of rank and education.
Even in this country, however, their acquiescence is far from being as yet altogether uniform and undeviating: in some instances their judgments are still warped by antipathies or prejudices unconnected with the principle of utility, and therefore irreconcilable to reason. They are apt to bear antipathy to certain offences, without regard to even their imputed mischievousness, and to entertain a prejudice against certain punishments, without regard to their eligibility with respect to the ends of punishment.
The variety of capricious objections to which each particular mode of punishment is exposed, has no other limits than the fecundity of the imagination: with some slight exceptions, they may however be ranged under one or other of the following heads:—Liberty — Decency — Religion — Humanity. What I mean by a capricious objection, is an objection which derives the whole of its apparent value from the impression that is apt to be made by the use of those hallowed expressions: the caprice consists in employing them in a perverted sense.
1. Liberty.— Under this head there is little to be said. All punishment is an infringement on liberty: no one submits to it but from compulsion. Enthusiasts, however, are not wanting, who, without regarding this circumstance, condemn certain modes of punishment, as, for example, imprisonment accompanied with penal labour, as a violation of the natural rights of man. In a free country like this, say they, it ought not to be tolerated, that even malefactors should be reduced to a state of slavery: the precedent is dangerous and pernicious; none but men groaning under a despotic government can endure the sight of galley-slaves.
When the establishment of the penitentiary system was proposed, this objection was echoed and insisted on, in a variety of publications that appeared on that occasion. Examine this senseless clamour: it will resolve itself into a declaration, that liberty ought to be left to those that abuse it, and that the liberty of malefactors is an essential part of the liberty of honest men.
2. Decency.— Objections drawn from the topics of decency are confined to those punishments, of which the effect is to render those parts which it is inconsistent with decency to expose, the objects of sight or of conversation.
Who can doubt, that in all punishments, care should be taken that no offence be given to modesty. But modesty, like other virtues, is valuable only in proportion to its utility. When the punishment is the most appropriate, though not either in its description or its execution altogether reconcileable with modesty, this circumstance ought not, as it appears to me, to stand in the way of the attainment of any object of greater utility. Castration, for example, seems the most appropriate punishment in the case of rape; that is to say, the best adapted to produce a strong impression on the mind at the moment of temptation. Is it expedient, then, on account of such scruples of modesty, that another punishment, as, for example, death, should be employed, which is less exemplary, and, consequently, less efficacious?*
3. Religion— Among Christians there are some sects who conceive that the punishment of death is unlawful: life, say they, is the gift of God, and man is forbidden to take it away.
We shall find in the next book, that very cogent reasons are not wanting for altogether abolishing capital punishment, or, at most, for confining it to extraordinary cases. But this pretence of unlawfulness is a reason drawn from false principles.
Unlawful means contrary to some law. Those who, upon the occasion in question, apply this expression to the punishment of death, believe themselves, or endeavour to make others believe, that it is contrary to some divine law: this divine law is either revealed or unrevealed; if it be revealed, it must be to be found in the texts of those books which are understood to contain the expressions of God’s will; but as there exists no such text in the New Testament, and as the Jewish law expressly ordains capital punishment, the partisans of this opinion must have recourse to some divine law not revealed — to a natural law; that is to say, to a law deduced from the supposed will of God.
But if we presume that God wills anything, we must suppose that he has a reason for so doing, a reason worthy of himself, which can only be the greatest happiness of his creatures. In this point of view, therefore, the divine will cannot require anything inconsistent with general utility.
If it can be pretended that God can have any will not consistent with utility, his will becomes a fantastic and delusive principle, in which the ravings of enthusiasm, and the extravagancies of superstition, will find sanction and authority.
In many cases, religion has been to such a degree perverted, as to become a bar to the execution of penal laws; as in the case of sanctuaries opened for criminals, in the Romish churches.
Theodosius I. forbade all criminal proceedings during Lent, alleging, as a reason, that the judges ought not to punish the crimes of others whilst they were imploring the divine forgiveness for their own transgressions. Valentinian I. directed that at Easter all prisoners should be discharged, except those that were accused of the most malignant offences.
Constantine prohibited, by law, the branding criminals on the face, alleging, that it is a violation of the law of nature to disfigure the majesty of the human face — the majesty of the face of a scoundrel!
The Inquisition, says Bayle, that it might not violate the maxim, Ecclesia non novit sanguinem, condemned its victims to be burnt alive. Religion has had its quibbles as well as the law.
4. Humanity.— Attend not to the sophistries of reason, which often deceive, but be governed by your hearts, which will always lead you to right. I reject, without hesitation, the punishment you propose: it violates natural feelings, it harrows up the susceptible mind, it is tyrannical and cruel. Such is the language of your sentimental orators.
But abolish any one penal law, merely because it is repugnant to the feelings of a humane heart, and, if consistent, you abolish the whole penal code: there is not one of its provisions that does not, in a more or less painful degree, wound the sensibility.
All punishment is in itself necessarily odious: if it were not dreaded, it would not effect its purpose; it can never be contemplated with approbation, but when considered in connexion with the prevention of the crime against which it is denounced.
I reject sentiment as an absolute judge, but under the control of reason it may not be a useless monitor. When a penal dispensation is revolting to the public feeling, this is not of itself a sufficient reason for rejecting it, but it is a reason for subjecting it to a rigorous scrutiny. If it deserves the antipathy it excites, the causes of that antipathy may be easily detected. We shall find that the punishment in question is mis-seated, or superfluous, or disproportionate to the offence, or that it has a tendency to produce more mischief than it prevents. By this means we arrive at the seat of the error. Sentiment excites to reflection, and reflection detects the impropriety of the law.
The species of punishment that command the largest share of public approbation are such as are analogous to the offence. Punishments of this description are commonly considered just and equitable; but what is the foundation of this justice and equity I know not. The delinquent suffers the same evil he has caused: ought the law to imitate the example it condemns? ought the judge to imitate the malefactor in his wickedness? ought a solemn act of justice to be the same in kind as an act of criminality?
This circumstance satisfies the multitude: the mouth of the criminal is stopped, and he cannot accuse the law of severity, without at the same time being equally self-condemned.
Fortunately, the same bent of the imagination that renders this mode of punishment popular, renders it at the same time appropriate. The analogy that presents itself to the people, presents itself at the moment of temptation to the delinquent, and renders it a peculiar object of dread.
It is of importance to detect and expose erroneous conceptions, even when they happen to accord with the principle of utility. The coincidence is a mere accident; and whoever on any one occasion forms his judgment, without reference to this principle, prepares himself upon any other to decide in contradiction to it. There will be no safe and steady guide for the understanding in its progress, till men shall have learnt to trust to this principle alone, to the exclusion of all others. When the judgment is to decide, the use of laudatory or vituperative expressions is the mere babbling of children: they ought to be avoided in all philosophical disquisitions, where the object ought to be to instruct and convince the understanding, and not to inflame the passions.
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