OF THE PROPORTION BETWEEN PUNISHMENTS AND
I. We have seen that the general object of all laws is
to prevent mischief; that is to say, when it is worth while; but that, where
there are no other means of doing this than punishment, there are four cases in
which it is not worth while.
II. When it is worth while, there are four subordinate
designs or objects, which, in the course of his endeavours to compass, as far
as may be, that one general object, a legislator, whose views are governed by
the principle of utility, comes naturally to propose to himself.
III. 1. His first, most extensive, and most eligible
object, is to prevent, in as far as it is possible, and worth while, all sorts
of offenses whatsoever: in other words, so
to manage, that no offense whatsoever may be committed.
IV. 2. But if a man must needs commit an offense of
some kind or other, the next object is to induce him to commit an offense
less mischievous, rather than one more mischievous: in other
words, to choose always the least mischievous, of two offenses that will
either of them suit his purpose.
V. 3. When a man has resolved upon a particular
offense, the next object is to dispose him to do no more mischief than
is necessary to his purpose: in other words, to do as little mischief as
is consistent with the benefit he has in view.
VI. 4. The last object is, whatever the mischief be,
which it is proposed to prevent, to prevent it at as cheap a rate as
VII. Subservient to these four objects, or purposes,
must be the rules or canons by which the proportion of punishments to offenses is to be governed.
VIII. Rule 1. The first object, it has been seen, is to
prevent, in as far as it is worth while, all sorts of offenses; therefore,
The value of the punishment must not less in any case than what is
sufficient to outweigh that of the profit of the offense.
If it be, the offence (unless some other considerations, independent of the
punishment should intervene and operate efficaciously in the character of
tutelary motives) will be sure to be to
committed notwithstanding: the whole lot of
punishment will be thrown away: it will be altogether
IX. The above rule has been often objected to, on
account of its seeming harshness: but this can only have happened for want of
its being properly understood. The strength of the temptation, cęteris
paribus, is as the profit of the offense: the quantum of the punishment
must rise with the profit of the offense: cęteris paribus, it must
therefore rise with the strength of the temptation. This there is no disputing.
True it is, that the stronger the temptation, the less conclusive is the
indication which the act of delinquency affords of the depravity of the
offender's disposition. So far then as the
absence of any aggravation, arising from extraordinary depravity of
disposition, may operate, or at the utmost, so far as the presence of a ground
of extenuation, resulting from the innocence or beneficence of the offender's
disposition, can operate, the strength of the temptation may operate in
abatement of the demand for punishment. But it can never operate so far as to
indicate the propriety of making the punishment ineffectual, which it is sure
to be when brought below the level of the apparent profit of the offense.
The partial benevolence which should prevail for the reduction of it below
this level, would counteract as well those purposes which such a motive would
actually have in view, as those more extensive purposes which benevolence ought
to have in view: it would be cruelty not only to the public, but to the very
persons in whose behalf it pleads: in its effects, I mean, however opposite in
its intention. Cruelty to the public, that is cruelty to the innocent, by
suffering them, for want of an adequate protection, to lie exposed to the
mischief of the offense: cruelty even to the offender himself, by punishing him
to no purpose, and without the chance of compassing that beneficial end, by
which alone the introduction of the evil of punishment is to be justified.
X. Rule 2. But whether a given offence shall be
prevented in a given degree by a given quantity of punishment, is never any
thing better than a chance; for the purchasing of which, whatever punishment is
employed, is so much expended into advance. However, for the sake of giving it
the better chance of outweighing the profit of the offence,
The greater the mischief of the offense, the greater is the expense which
it may be worth while to be at, in the way of punishment.
XI. Rule 3. The next object is, to induce a man to
choose always the least mischievous of two offenses; therefore,
Where two offences come in competition, the punishment for the greater
offence must be sufficient to induce a man to prefer the less.
XII. Rule 4. When a man has resolved upon a particular
offense, the next object is, to induce him to do no more mischief than what is
necessary for his purpose: therefore
The punishment should be adjusted in such manner to each particular
offence, that for every part of the mischief there may be a motive to restrain
the offender frown giving birth to it.
XIII. Rule 5. The last object is, whatever mischief is
guarded against, to guard against it at as cheap a rate as possible: therefore
The punishment ought in no case to be more than what is necessary to
bring it into conformity with the rules here given.
XIV. Rule 6. It is further to be observed, that owing
to the different manners and degrees in which persons under different
circumstances are affected by the same exciting cause, a punishment which is
the same in name will not always either really produce, or even so much as
appear to others to produce, in two different persons the same degree of pain:
That the quantity actually indicted on each individual offender nay
correspond to the quantity intended for similar offenders in general, the
several circumstances influencing sensibility ought always to be taken into
XV. Of the above rules of proportion, the first four,
we may perceive serve to mark out limits on the side of diminution; the limits
belowwhich a punishment ought not to be diminished: the fifth the
limits on the side of increase; the limits above which it ought not to
be increased. The five first are calculated to serve as guides to the
legislator: the sixth is calculated in some measure, indeed, to the same
purpose; but principally for guiding the judge in his endeavors to conform, on
both sides, to the intentions of the legislator.
XVI. Let us look back a little. The first rule, in
order to render it more conveniently applicable to practice, may need perhaps
to be a little more particularly unfolded. It is to be observed, then, that for
the sake of accuracy, it was necessary, instead of the word quantity to
make use of the less perspicuous term value. For the word
quantity will not properly include and the circumstances either of
certainty or proximity: circumstances which, in estimating the value of a lot
of pain or pleasure, must always be taken into the account. Now, on the one hand, a lot of punishment is a
lot of pain; on the other hand, the profit of an offense is a lot of pleasure,
or what is equivalent to it. But the profit of the offense is commonly
more certain than the punishment, or, what comes to the same thing,
appears so at least to the offender. It is at any rate commonly more
immediate. It follows, therefore, that, in order to maintain its
superiority over the profit of the offense, the punishment must have its value
made up in some other way, in proportion to that whereby it falls short in the
two points of certainty and proximity. Now there is no other way
in which it can receive any addition to its value, but by receiving an
addition in point of magnitude. Wherever then the value of the
punishment falls short, either in point of certainty, or of
proximity, of that of the profit of the offence, it must receive a
proportionable addition in point of magnitude.
XVII. Yet farther. To make sure of giving the value of
the punishment the superiority over that of the offence, it may be of
necessary, in some cases, to take into account the profit not only of the
individual offence to which the punishment is to be annexed, but also of
such other offences of the same sort as the offender is likely to
have already committed without detection. This random mode of calculation,
severe as it is, it will be impossible to avoid having recourse to, in certain
cases: in such, to wit, in which the profit is pecuniary, the chance of
detection very small, and the obnoxious act of such a nature as indicates a
habit: for example, in the case of frauds against the coin. If it be not
recurred to, the practice of committing the offence will be sure to be, upon
the balance of the account, a gainful practice. That being the case, the
legislator will be absolutely sure of not being able to suppress it, and
the whole punishment that is bestowed upon it will be thrown away. In a word
(to keep to the same expressions we set out with) that whole quantity of
punishment will be inefficacious.
XVIII. Rule 7. These things being considered, the three
following rules may be laid down by way of supplement and explanation to Rule
To enable the value of the punishment to outweigh that of the profit of
the offense, it must be increased, in point of magnitude, in proportion as it
falls short in point of certainty.
XIX. Rule 8. Punishment must be further increased in
point of magnitude, in proportion as it falls short in point of proximity.
XX. Rule 9. Where the act is conclusively indicative
of a habit, such an increase must be given to the punishment as may enable it
to outweigh the profit not only of the individual offence, but of such other
like offenses as are likely to have been committed with impunity by the same
XXI. There may be a few other circumstances or
considerations which may influence, in some small degree, the demand for
punishment: but as the propriety of these is either not so demonstrable, or not
so constant, or the application of them not so determinate, as that of the
foregoing, it may be doubted whether they be worth putting on a level with the
XXII. Rule 10. When a punishment, which in point of
quality is particularly well calculated to answer its intention cannot exist in
less than a certain quantity, it may sometimes be of use, for the sake of
employing it, to stretch a little beyond that quantity which, on other
accounts, would be strictly necessary.
XXIII. Rule 11. In particular, this may sometimes be
the case, where the punishment proposed is of such a nature as to be
particularly well calculated to answer the purpose of a moral
XXIV. Rule 12. The tendency of the above considerations
is to dictate an augmentation in the punishment: the following rule operates in
the way of diminution. There are certain cases (it has been seen) in which, by the influence of accidental
circumstances, punishment may be rendered unprofitable in the whole: in the
same cases it may chance to be rendered unprofitable as to a part only.
In adjusting the quantum of punishment, the circumstances; by which all
punishment may be rendered unprofitable, ought to be attended to.
XXV. Rule 13. It is to be observed, that the more
various and minute any set of provisions are, the greater the chance is that
any given article in them will not be borne in mind: without which, no benefit
can ensue from it. Distinctions, which are more complex than what the
conceptions of those whose conduct it is designed to influence can take in,
will even be worse than useless. The whole system will present a confused
appearance: and thus the effect, not only of the proportions established by the
articles in question, but of whatever is connected with them, will be
destroyed. To draw a precise line of
direction in such case seems impossible. However, by way of memento, it may be
of some use to subjoin the following rule.
Among provisions designed to perfect the proportion between punishments
and offences, if any occur, which, by their own particular good effects, would
not make up for the harm they would do by adding to the intricacy of the Code,
they should be omitted.
XXVI. It may be remembered, that the political
sanction, being that to which the sort of punishment belongs, which in this
chapter is all along in view, is but one of four sanctions, which may all of
them contribute their share towards producing the same effects. It maybe
expected, therefore, that in adjusting the quantity of political punishment,
allowance should be made for the assistance it may meet with from those other
controlling powers. True it is, that from each of these several sources a very
powerful assistance may sometimes be derived. But the case is, that (setting
aside the moral sanction, in the case where the force of it is expressly
adopted into and modified by the political) the force of those other powers is never
determinate enough to be depended upon. It can never be reduced, like political
punishment, into exact lots, nor meted out in number, quantity, and value. The
legislator is therefore obliged to provide the full complement of punishment,
as if he were sure of not receiving any assistance whatever from any of those
quarters. If he does, so much the better: but lest he should not, it is
necessary he should, at all events, make that provision which depends upon
XXVII. It may be of use, in this place, to recapitulate
the several circumstances, which, in establishing the proportion betwixt
punishments and offenses, are to be attended to. These seem to be as follows:
I. On the part of the offence:
- The profit of the offense;
- The mischief of the offense;
- The profit and mischief of other greater or lesser offences, of different
sorts, which the offender may have to choose out of;
- The profit and mischief of other offenses, of the same sort, which the same
offender may probably have been guilty of already.
II. On the part of the punishment:
- The magnitude of the punishment: composed of its intensity and
- The deficiency of the punishment in point of certainty;
- The deficiency of the punishment in point of proximity;
- The quality of the punishment;
- The accidental advantage in point of quality of a punishment, not strictly
needed in point of quantity;
- The use of a punishment of a particular quality, in the character of a
III. On the part of the offender:
- The responsibility of the class of persons in a way to offend;
- The sensibility of each particular offender
- The particular merits or useful qualities of any particular offender, in
case of a punishment which might deprive the community of the benefit of them;
- The multitude of offenders on any particular occasion.
IV. On the part of the public, at any particular conjuncture:
- The inclinations of the people, for or against any quantity or
mode of punishment;
- The inclinations of foreign powers.
V. On the part of the law: that is, of the public for a continuance:
- The necessity of making small sacrifices, in point of
proportionality, for the sake of simplicity.
XXVIII. There are some, perhaps, who, at first sight,
may look upon the nicety employed in the adjustment of such rules, as so much
labour lost: for gross ignorance, they will say, never, troubles itself about
laws, and passion does not calculate. But, the evil of ignorance admits of
cure: and as to the proposition that
passion does not calculate, this, like most of these very general and oracular
propositions, is not true. When matters of such importance as pain and pleasure
are at stake, and these in the highest degree (the only matters, in short, that
can be of importance) who is there that does not calculate? Men calculate, some
with less exactness, indeed, some with more: but all men calculate. I would not
say, that even a madman does not calculate. Passion calculates, more or less, in every man:
in different men, according to the warmth or coolness of their dispositions:
according to the firmness or irritability of their minds: according to the
nature of the motives by which they are acted upon. Happily, of all passions,
that is the most given to calculation, from the excesses of which, by reason of
its strength, constancy, and universality, society has most to
apprehend: I mean that which corresponds
to the motive of pecuniary interest: so that these niceties, if such they are
to be called, have the best chance of being efficacious, where efficacy is of
the most importance.
1. By offences I mean, at present, acts which
appear to him to have a tendency to produce mischief.
2. The same rules (it is to be observed) may be
applied, with little variation, to rewards as well as punishment: in short, to
motives in general, which, according as they are of the pleasurable or painful
kind, are of the nature of reward or punishment: and, according
as the act they are applied to produce is of the positive or negative kind, are
styled impelling or restraining. See ch. x. [Motives] xliii.
3. By the profit of an offense, is to be understood,
not merely the pecuniary profit, but the pleasure or advantage, of whatever
kind it be, which as a man reaps, or expects to reap, from the gratification of
the desire which prompted him to engage in the offense.
It is the profit (that is, the expectation of the profit) of the offence
that constitutes the impelling motive, or, where there are several, the
sum of the impelling motives, by which a man is prompted to engage in the
offense. It is the punishment, that is, the expectation of the punishment, that
constitutes the restraining motive, which, either by itself, or in
conjunction with others, is to act upon him in a contrary direction, so
as to induce him to abstain from engaging in the offense. Accidental
circumstances apart, the strength of the temptation is as the force of the
seducing, that is, of the impelling motive or motives. To say then, as authors
of great merit and great name have said, that the punishment ought not to
increase with the strength of the temptation, is as much as to say in
mechanics, that the moving force or momentum of the power need
not increase in proportion to the momentum of the burthen.
4. Beccaria, dei diletti, Section 6. id. trad. par.
Morellet, Section 23.
5. See ch. xi. [Dispositions] xxix.
6. It is a well-known adage, though it is to be hoped
not a true one, that every man has his price. It is commonly meant of a man's
virtue. This saying, though in a very different sense, was strictly verified by
some of the Anglo-Saxon laws: by which a fixed price was set, not upon a man's
virtue indeed, but upon his life: that of the sovereign himself among the rest.
For 200 shillings you might have killed a peasant: for six times as much, a
nobleman: for six-and-thirty times as much you might have killed the
king. A king in those days was worth
exactly 7,200 shillings. If then the heir to the throne, for example, grew
weary of waiting for it, he had a secure and legal way of gratifying his
impatience: he had but to kill the king with one hand, and pay himself with the
other, and all was right An earl Godwin, or a duke Streon, could have bought
the lives of a whole dynasty. It is plain, that if ever a king in those days
died in his bed, he must have had something else, besides this law, to thank
for it. This being the production of a remote and barbarous age, the absurdity
of it is presently recognised: but, upon examination, it would be found, that
the freshest laws of the most civilised nations are continually falling into
the same error. This, in short, is the
ease wheresoever the punishment is fixed while the profit of delinquency is
indefinite: or, to speak more precisely, where the punishment is limited to
such a mark, that the profit of delinquency may reach beyond it.
7. See ch. xiii. [Cases unmeet] § 1.
8. See ch. xi. [Dispositions], xlii.
9. For example, if it can ever be worth while to be at
the expense of so horrible a punishment as that of burning alive, it will be
more so in the view of preventing such a crime as that of murder or
incendiarism, than in the view of preventing the uttering of a piece of bad
money. See B. I. tit. [Defraudment touching the Coin] and [Incendiarism].
10. Espr. des Loix, L. vi. c. 16.
11. If any one have any doubt of this, let him conceive
the offence to be divided into as many separate offenses as there are
distinguishable parcels a of mischief that result from it. Let it consist, for
example, in a man's giving you ten blows, or stealing from you ten shillings.
If then, for giving you ten blows, he is punished no more than for giving you
five, the giving you five of these ten blows is an offense for which there is
no punishment at all: which being understood, as often as a man gives you five
blows, he will be sure to give you five more, since he may have the pleasure of
giving you these five for nothing. In like manner, if for stealing from you ten
shillings, he is punished no more than for stealing five, the stealing of the
remaining five of those ten shillings is an offense for which there is no
punishment at all. This rule is violated in almost every page of every body of
laws I have ever seen.
The profit, it is to be observed, though frequently, is not constantly,
proportioned to the mischief: for example, where a thief, along with the things
he covets, steals others which are of no use to him. This may happen through
wantonness, indolence, precipitation, &c. &c.
12. See ch. vi. [Sensibility].
13. See ch. iv. [Value].
14. It is for this reason, for example, that simple
compensation is never looked upon as sufficient punishment for theft or
15. A punishment may be said to be calculated to answer
the purpose of a moral lesson, when, by reason of the ignominy it stamps upon
the offense, it is calculated to inspire the public with sentiments of aversion
towards those pernicious habits and dispositions with which the offense appears
to be connected; and thereby to inculcate the opposite beneficial habits and
It is this, for example, if any thing, that must justify the application of
so severe a punishment as the infamy of a public exhibition, hereinafter
proposed, for him who lifts up his hand against a woman, or against his father.
See B. I. tit. [Simp. corporal injuries].
It is partly on this principle, I suppose, that military legislators have
justified to themselves the inflicting death on the soldier who lifts up his la
hand against his superior officer.
16. See ch. xiii. [Cases unmeet], § 4.
17. See B. II. tit. [Purposes], Append. tit.
18. Notwithstanding this rule, my fear is, that in the
ensuing model, I may be thought to have carried my endeavours at
proportionality too far. Hitherto scarce any attention has been paid to it.
Montesquieu seems to we have been almost the first who has had the least idea
of any such thing. In such a matter, therefore, excess seemed more eligible
than defect. The difficulty is to invent: that done, if any thing seems
superfluous, it is easy to retrench.
19. See B. I. tit. [Punishments].
20. See Append. tit. [Promulgation].
21. There are few madmen but what are observed to be
afraid of the strait waistcoat.
22. See ch. xii. [Consequences], xxxiii.
23. See ch. x. [Motives] § 1.
24. Wilkins Leg. Anglo-Sax. p. 71, 72. See Hume, Vol.
1. App. 1. p. 219.
25. See in particular the English Statute Laws
throughout, Bonaparte's Penal Code, and the recently enacted or not enacted
Spanish penal code. — Note by the author, July 1822.
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