OF THE PROPERTIES TO BE GIVEN TO A LOT OF
I. It has been shown what the rules are, which ought to
be observed in adjusting the proportion between the punishments and the
offense. 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
II. The first of those rules, we may remember, was,
that the quantity of punishment must not be less, in any case, than what is
sufficient to outweigh the profit of the offence: since, as often as it is
less, the whole lot (unless by accident the deficiency should be supplied from
some of the other sanctions) is thrown away: it is inefficacious. The
fifth was, that the punishment ought in no case to be more than what is
required by the several other rules: since, if it be, all that is above that
quantity is needless. The fourth was, that the punishment should be
adjusted in such manner to each individual offence, that every part of the
mischief of that offence may have a penalty (that is, a tutelary motive) to
encounter it: otherwise, with respect to so much of the offense as has not a
penalty to correspond to it, it is as if there were no punishment in the case.
Now to none of those rules can a lot of punishment be conformable, unless, for
every variation in point of quantity, in the mischief of the species of offense
to which it is annexed, such lot of punishment admits of a correspondent
variation. To prove this, let the profit of the offence admit of a multitude of
degrees. Suppose it, then, at any one of these degrees: if the punishment be
less than what is suitable to that degree, it will be inefficacious; it
will be so much thrown away: if it be more, as far as the difference extends,
it will be needless; it will therefore be thrown away also in that case.
The first property, therefore, that ought to be given to a lot of
punishment, is that of being variable in point of quantity, in conformity to
every variation which can take place in either the profit or mischief of the
offense. This property might, perhaps, be termed, in a single word,
III. 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
legislator; and that capable of being screwed up or let down to any degree that
can be required; if, after all, whatever degree of it be pitched upon, 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. In this case,
as in the former, if circumstances happen one way, there will be a great deal
of pain produced which will be needless: if the other way, there will be
no pain at all applied, or none that will be efficacious. A punishment,
when liable to this irregularity, may be styled an unequable one: when free
from it, an equable one. The quantity of pain produced by the punishment will,
it is true, depend in a considerable degree upon circumstances distinct from
the nature of the punishment itself: upon the condition which the offender is
in, with respect to the circumstances by which a man's sensibility is liable to
be influenced. But the influence of these very circumstances will in many cases
be reciprocally influenced by the nature of the punishment: in other words, the
pain which is produced by any mode of punishment, will be the joint effect of
the punishment which is applied to him, and the circumstances in which he is
exposed to it. Now there are some punishments, of which the effect may be
liable to undergo a greater alteration by the influence of such foreign
circumstances, than the effect of other punishments is liable to undergo. So
far, then, as this is the case, equability or unequability may be regarded as
properties belonging to the punishment itself.
IV. An example of a mode of punishment which is apt to
be unequable, is that of banishment, when the locus a quo (or
place the party is banished from) is some determinate place appointed by the
law, which perhaps the offender cares not whether he ever see or no. This is
also the case with pecuniary, or quasi-pecuniary punishment, when
it respects some particular species of property, which the offender may have
been possessed of, or not, as it may happen. All these punishments may be split
down into parcels, and measured out with the utmost nicety: being divisible by
time, at least, if by nothing else. They are not, therefore, any of them
defective in point of variability: and yet, in many cases, this defect in point
of equability may make them as unfit for use as if they were.
V. The third rule of proportion was, that where two
offenses come in competition, the punishment for the greater offenses must be
sufficient to induce a man to prefer the less. Now, to be sufficient for this
purpose, it must be evidently and uniformly greater: greater, not in the eyes
of some men only, but of all men who are liable to be in a situation to take
their choice between the two offenses; that is, in effect, of all mankind. In
other words, the two punishments must be perfectly commensurable. Hence
arises a third property, which may be termed commensurability: to wit,
with reference to other punishments.
VI. But punishments of different kinds are in very few
instances uniformly greater one than another; especially when the lowest
degrees of that which is ordinarily the greater, are compared with the highest
degrees of that which is ordinarily the less: in other words, punishments of
different kinds are in few instances uniformly commensurable. The only certain
and universal means of making two lots of punishment perfectly commensurable,
is by making the lesser an ingredient in the composition of the greater. This
may be done in either of two ways. 1. By adding to the lesser punishment
another quantity of punishment of the same kind. 2. By adding to it another
quantity of a different kind. The latter mode is not less certain than the
former: for though one cannot always be absolutely sure, that to the same
person a given punishment will appear greater than another given punishment;
yet one may be always absolutely sure, that any given punishment, so as it does
but come into contemplation, will appear greater than none at all.
VII. Again: Punishment cannot act any farther than in
as far as the idea of it, and of its connection with the offense, is present in
the mind. The idea of it, if not present, cannot act at all; and then the
punishment itself must be inefficacious. Now, to be present, it must be
remembered, and to be remembered it must have been learnt. But of all
punishments that can be imagined, there are none of which the connection with
the offense 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
idea of the offense: which is the case when the one and the other have some
circumstance that belongs to them in common. When this is the case with a
punishment and an offense, the punishment is said to bear an analogy to,
or to be characteristic of, the offence.Characteristicalness is, therefore, a
fourth property, which on this account ought to be given, whenever it can
conveniently be given, to a lot of punishment.
VIII. It is obvious, that the effect of this
contrivance will be the greater, as the analogy is the closer. The analogy will
be the closer, the more material
that circumstance is, which is in common. Now the most material circumstance
that can belong to an offense and a punishment in common, is the hurt or damage
which they produce. The closest analogy, therefore, that can subsist between an
offense and the punishment annexed to it, is that which subsists between them
when the hurt or damage they produce is of the same nature: in other words,
that which is constituted by the circumstance of identity in point of
damage. Accordingly, the mode of
punishment, which of all others bears the closest analogy to the offense, is
that which in the proper and exact sense of the word is termed
retaliation. Retaliation, therefore, in the few cases in which it is
practicable, and not too expensive, will have one great advantage over every
other mode of punishment.
IX. Again: It is the idea only of the punishment (or,
in other words, the apparent punishment) that really acts upon the mind;
the punishment itself (the real punishment) acts not any farther than as
giving rise to that idea. It is the apparent punishment, therefore, that does
all the service, I mean in the way of example, which is the principal
object. It is the real punishment that does
all the mischief. Now the ordinary and
obvious way of increasing the magnitude of the apparent punishment, is by
increasing the magnitude of the real. The apparent magnitude, however, may to a
certain degree be increased by other less expensive means: whenever, therefore,
at the same time that these less expensive means would have answered that
purpose, an additional real punishment is employed, this additional real
punishment is needless. As to these less expensive means, they consist,
1. In the choice of a particular mode of punishment, a punishment of a
particular quality, independent of the quantity. 2. In a particular set of solemnities
distinct from the punishment itself, and accompanying the execution of
X. A mode of punishment, according as the appearance of
it bears a greater proportion to the reality, may be said to be the more
exemplary. Now as to what concerns the choice of the punishment itself,
there is not any means by which a given quantity of punishment can be rendered
more exemplary, than by choosing it of such a sort as shall bear an
analogy to the offense. Hence another reason for rendering the
punishment analogous to, or in other words characteristic of, the offense.
XI. Punishment, it is still to be remembered, is in
itself an expense: it is in itself an evil. Accordingly the fifth rule of proportion is, not
to produce more of it than what is demanded by the other rules. But this is the
case as often as any particle of pain is produced, which contributes nothing to
the effect proposed. Now if any mode of punishment is more apt than another to
produce any such superfluous and needless pain, it may be styled
unfrugal; if less, it may be styled frugal. Frugality,
therefore, is a sixth property to be wished for in a mode of punishment.
XII. 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. Understand a profit or stock of pleasure of the self-regarding
kind: for a pleasure of the dissocial kind is produced almost of course, on the
part of all persons in whose breasts the offence has excited the sentiment of
ill-will. Now this is the case with pecuniary punishment, as also with such
punishments of the quasi-pecuniary kind as consist in the subtraction of
such a species of possession as is transferable from one party to another. The
pleasure, indeed, produced by such an operation, is not in general equal to the
pain: it may, however, be so in particular
circumstances, as where he, from whom the thing is taken, is very rich, and he,
to whom it is given, very poor: and, be it what it will, it is always so much
more than can be produced by any other mode of punishment.
XIII. The properties of exemplarity and frugality seem
to pursue the same immediate end, though by different courses. Both are
occupied in diminishing the ratio of the real suffering to the apparent: but
exemplarity tends to increase the apparent; frugality to reduce the real.
XIV. Thus much concerning the properties to be given to
punishments in general, to whatsoever offenses they are to be applied. Those
which follow are of less importance, either as referring only to certain
offenses in particular, or depending upon the influence of transitory and local
In the first place, the four distinct ends into which the main and general
end of punishment is divisible, may give
rise to so many distinct properties, according as any particular mode of
punishment appear to be more particularly adapted to the compassing of one or
of another of those ends. To that of example, as being the principal
one, a particular property has already been adapted. There remains the three
inferior ones of reformation, disablement, and
XV. A seventh property, therefore, to be wished for in
a mode of punishment, is that of subserviency to reformation, or
reforming tendency. Now any punishment is subservient to reformation in
proportion to its quantity: since the greater the punishment a man has
experienced, the stronger is the tendency it has to create in him an aversion
towards the offense which was the cause of it: and that with respect to all
offenses alike. But there are certain punishments which, with regard to certain
offenses, have a particular tendency to produce that effect by reason of their
quality: and where this is the case, the punishments in question, as
applied to the offenses in question, will pro tanto have the advantage
over all others. This influence will depend upon the nature of the motive which
is the cause of the offence: the punishment most subservient to reformation
will be the sort of punishment that is best calculated to invalidate the force
of that motive.
XVI. Thus, in offenses originating from the motive of
ill-will, that punishment has the
strongest reforming tendency, which is best calculated to weaken the force of
the irascible affections. And more particularly, in that sort of offense which
consists in an obstinate refusal, on the part of the offender, to do something
which is lawfully required of him, and in
which the obstinacy is in great measure kept up by his resentment against those
who have an interest in forcing him to compliance, the most efficacious
punishment seems to be that of confinement to spare diet.
XVII. Thus, also, in offenses which owe their birth to
the joint influence of indolence and pecuniary interest, that punishment seems
to possess the strongest reforming tendency, which is best calculated to weaken
the force of the former of those dispositions. And more particularly, in the
cases of theft, embezzlement, and every species of defraudment, the mode of
punishment best adapted to this purpose seems, in most cases, to be that of
XVIII. An eighth property to be given to a lot of
punishment in certain cases, is that of efficacy with respect to
disablement, or, as it might be styled more briefly, disabling
efficacy. This is a property which may be given in perfection to a lot of
punishment; and that with much greater certainty than the property of
subserviency to reformation. The inconvenience is, that this property is apt,
in general, to run counter to that of frugality: there being, in most cases, no
certain way of disabling a man from doing mischief, without, at the same time,
disabling him, in a great measure, from doing good, either to himself or
others. The mischief therefore of the offense must be so great as to demand a
very considerable lot of punishment, for the purpose of example, before it can
warrant the application of a punishment equal to that which is necessary for
the purpose of disablement.
XIX. The punishment, of which the efficacy in this way
is the greatest, is evidently that of death. In this case the efficacy of it is
certain . This accordingly is the punishment peculiarly adapted to those cases
in which the name of the offender, so long as he lives, may be sufficient to
keep a whole nation in a flame. This will now and then be the case with
competitors for the sovereignty, and leaders of the factions in civil wars:
though, when applied to offenses of so questionable a nature, in which the
question concerning criminality turns more upon success than any thing else; an
infliction of this sort may seem more to savour of hostility than punishment.
At the same time this punishment, it is evident, is in an eminent degree
unfrugal; which forms one among the many objections there are against
the use of it, in any but very extraordinary cases.
XX. In ordinary cases the purpose maybe sufficiently
answered by one or other of the various kinds of confinement and banishment: of
which, imprisonment is the most strict and efficacious. For when an offense is
so circumstanced that it cannot be committed but in a certain place, as is the
case, for the most part, with offenses against the person, all the law has to
do, in order to disable the offender from committing it, is to prevent his
being in that place. In any of the offenses which consist in the breach or the
abuse of any kind of trust, the purpose may be compassed at a still cheaper
rate, merely by forfeiture of the trust: and in general, in any of those
offenses which can only be committed under favour of some relation in which the
offender stands with reference to any person, or sets of persons, merely by
forfeiture of that relation: that is, of the right of continuing to reap the
advantages belonging to it. This is the case, for instance, with any of those
offences which consist in an abuse of the privileges of marriage, or of the
liberty of carrying on any lucrative or other occupation.
XXI. The ninth property is that of subserviency to
compensation. This property of punishment, if it be vindictive
compensation that is in view, will, with little variation, be in proportion to
the quantity: if lucrative, it is the peculiar and characteristic
property of pecuniary punishment.
XXII. 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. By popularity is meant the property of being acceptable, or rather
not unacceptable, to the bulk of the people, among whom it is proposed to be
established. In strictness of speech, it should rather be called absence of
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. Now the property of
characteristicalness, above noticed, seems
to go as far towards conciliating the approbation of the people to a mode of
punishment, as any; insomuch that popularity may be regarded as a kind of
secondary quality, depending upon that of characteristicalness. The use of
inserting this property in the catalogue, is chiefly to make it serve by way of
memento to the legislator not to introduce, without a cogent necessity, any
mode or lot of punishment, towards which he happens to perceive any violent
aversion entertained by the body of the people.
XXIII. The effects of unpopularity in a mode of
punishment are analogous to those of unfrugality. The unnecessary pain which
denominates a punishment unfrugal, is most apt to be that which is produced on
the part of the offender. A portion of superfluous pain is in like manner
produced when the punishment is unpopular: but in this case it is produced on
the part of persons altogether innocent, the people at large. This is already
one mischief; and another is, the weakness which it is apt to introduce into
the law. When the people are satisfied with the law, they voluntarily lend
their assistance in the execution: when they are dissatisfied, they will
naturally withhold that assistance; it is well if they do not take a positive
part in raising impediments. This contributes greatly to the uncertainty of the
punishment; by which, in the first instance, the frequency of the offense
receives an increase. In process of time that deficiency, as usual, is apt to
draw on an increase in magnitude: an addition of a certain quantity which
otherwise would be needless.
XXIV. This property, it is to be observed, necessarily
supposes, on the part of the people, some prejudice or other, which it is the
business of the legislator to endeavour to correct. For if the aversion to the
punishment in question were grounded on, the principle of utility, the
punishment would be such as, on other accounts, ought not to be employed: in
which case its popularity or unpopularity would never be worth drawing into
question. It is properly therefore a property not so much of the punishment as
of the people: a disposition to entertain an unreasonable dislike against an
object which merits their approbation. It is the sign also of another property,
to wit. indolence or weakness, on the part of the legislator: in suffering the
people for the want of some instruction, which ought to be and might be given
them, to quarrel with their own interest. Be this as it may, so long as any
such dissatisfaction subsists, it behoves the legislator to have an eye to it,
as much as if it were ever so well grounded. Every nation is liable to have its
prejudices and its caprices which it is the business of the legislator to look
out for, to study, and to cure.
XXV. The eleventh and last of all the properties that
seem to be requisite in a lot of punishment, is that of
remissibility. The general
presumption is, that when punishment is applied, punishment is needful: that it
ought to be applied, and therefore cannot want to be remitted. But in
very particular, and those always very deplorable cases, it may by accident
happen otherwise. It may happen that punishment shall have been inflicted,
where, according to the intention of the law itself, it ought not to have been
inflicted: that is, where the sufferer is innocent of the offense. At the time
of the sentence passed he appeared guilty: but since then, accident has brought
his innocence to light. This being the case, so much of the destined punishment
as he has suffered already, there is no help for. The business is then to free
him from as much as is yet to come. But is there any yet to come? There is very
little chance of there being any, unless it be so much as consists of
chronical punishment: such as imprisonment, banishment, penal labour,
and the like. So much as consists of acute punishment, to wit 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. For though other
punishments cannot, when they are over, be remitted, they may be compensated
for; and although the unfortunate victim cannot be put into the same condition,
yet possibly means may be found of putting him into as good a condition, as he
would have been in if he had never suffered. This may in general be done very
effectually where the punishment has been no other than pecuniary.
There is another case in which the property of remissibility may appear to
be of use: this is, where, although the offender has been justly punished, yet
on account of some good behaviour of his, displayed at a time subsequent to
that of the commencement of the punishment, it may seem expedient to remit a
part of it. But this it can scarcely be, if the proportion of the punishment
is, in other respects, what it ought to be. The purpose of example is the more
important object, in comparison of that of reformation. It is not very likely, that less punishment
should be required for the former purpose than for the latter. For it must be
rather an extraordinary case, if a punishment, which is sufficient to deter a
man who has only thought of it for a few moments, should not be sufficient to
deter a man who has been feeling it all the time. Whatever, then, is required
for the purpose of example, must abide at all events: it is not any reformation
on the part of the offender, that can warrant the remitting of any part of it:
if it could, a man would have nothing to do but to reform immediately, and so
free himself from the greatest part of that punishment which was deemed
necessary. In order, then, to warrant the remitting of any part of a punishment
upon this ground, it must first be supposed that the punishment at first
appointed was more than was necessary for the purpose of example, and
consequently that a part of it was needless upon the whole. This,
indeed, is apt enough to be the case, under the imperfect systems that are as
yet on foot: and therefore, during the continuance of those systems, the
property of remissibility may, on this second ground likewise, as well as on
the former, be deemed a useful one. But this would not be the case in any
new-constructed system, in which the rules of proportion above laid down should
be observed. In such a system, therefore, the utility of this property would
rest solely on the former ground.
XXVI. Upon taking a survey of the various possible
modes of punishment, it will appear evidently, that there is not any one of
them that possesses all the above properties in perfection. To do the best that
can be done in the way of punishment, it will therefore be necessary, upon most
occasions, to compound them, and make them into complex lots, each consisting
of a number of different modes of punishment put together: the nature and
proportions of the constituent parts of each lot being different, according to
the nature of the offence which it is designed to combat.
XXVII. It may not be amiss to bring together, and
exhibit in one view, the eleven properties above established. They are as
Two of them are concerned in establishing a proper proportion between a
single offense and its punishment; viz.
One, in establishing a proportion, between more offences than one, and more
punishments than one; viz.
A fourth contributes to place the punishment in that situation in which
alone it can be efficacious; and at the same time to be bestowing on it the two
farther properties of exemplarity and popularity; viz.
Two others are concerned in excluding all useless punishment; the one
indirectly, by heightening the efficacy of what is useful; the other in a
direct way; viz.
Three others contribute severally to the three inferior ends of punishment;
7. Subserviency to reformation.
8. Efficacy in disabling.
9. Subserviency to compensation.
Another property tends to exclude a collateral mischief, which a particular
mode of punishment is liable accidentally to produce; viz.
The remaining property tends to palliate a mischief, which all punishment,
as such is liable accidentally to produce; viz.
The properties of commensurability, characteristicalness, exemplarity,
subserviency to reformation, and efficacy in disabling, are more particularly
calculated to augment the profit which is to be made by punishment: frugality,
subserviency to compensation, popularity, and remissibility, to diminish the
expense: variability and equability are alike subservient to both those
XXVIII. We now come to take a general survey of the
system of offences: that is, of such acts to which, on account of the
mischievous consequences they have a natural tendency to produce, and in the
view of putting a stop to those consequences, it may be proper to annex a
certain artificial consequence, consisting of punishment, to be inflicted on
the authors of such acts according to the principles just established.
1. By the English law, there are several offenses which
are punished by a total forfeiture of moveables, not extending to immoveables.
This is the case with suicide, and with certain species of theft and homicide.
In some cases, this is the principal punishment: in others, even the only one.
The consequence is, that if a man's fortune happens to consist in moveables, he
is ruined; if in immoveables, he suffers nothing.
2. See View of the Hard-Labour Bill, Lond. 1778,
For the idea of this property, I must acknowledge myself indebted to an
anonymous letter in the St. James's Chronicle, of the 27th of September 1777;
the author of which is totally unknown to me. If any one should be disposed to
think lightly of the instruction, on recount of the channel by which it was
first communicated, let him tell me where I can find an idea more ingenious or
3. See Montesq. Esp. des Loix, L. xii. ch. iv. He seems
to have the property of characteristicalness in view; but that the idea he had
of it was very indistinct, appears from the extravagant advantages he
attributes to it.
4. See ch. vii. [Actions], iii.
5. Besides this, there are a variety of other ways in
which the punishment may bear an analogy to the offense. This will be seen by
looking over the table of punishments.
6. See ch. xiii. [Cases unmeet], § 1, 2. note.
7. Ib. § 4. par. iii.
8. See B. I. tit. [Punishments].
9. See B. II. tit. [Execution].
10. Ch. xiii. [Cases unmeet], par. iii.
11. Ib. note.
12. See ch. xiii. [Cases unmeet], par. ii. note.
13. See ch. x. [Motives].
14. See B. I. tit. [Offences against Justice].
15. See B. I. tit. [Punishments].
16. The property of charaeteristicalness, therefore, is
useful in a mode of punishment in three different ways: 1. It renders a mode of
punishment, before infliction, more easy to be borne in mind: 2. It enables it,
especially after infliction, to make the stronger impression, when it is there;
that is, renders it the more exemplary: 3. It tends to render it more
acceptable to the people, that is, it renders it the more popular.
17. See ch. xiii. [Cases unmeet], § v.
18. See ch. xiii. [Cases unmeet], § iv. par. iv.
19. See View of the Hard Labour Bill, p. 109.
20. See ch. xiii. [Cases unmeet], ii. note.
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