 CHAPTER XIII. UNMEET FOR PUNISHMENT Section 1. GENERAL VIEW OF CASES, UNMEET FOR PUNISHMENT 1. The general object which all laws have, or ought to have, in common, is to augment the total happiness of the community, and therefore, in the first place, to exclude, as far as may be, everything that tends to subtract from that happiness. In other words, to exclude mischief. 2. But all punishment is mischief. All punishment in itself is 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. Again footnote. What follows, relative to the subject of punishment, ought regularly to be preceded by a distinct chapter on the ends of punishment. But having little to say on that particular branch of the subject, which has not been said before, it seems better, in a work which will, at any rate, be but too voluminous, to admit this title. Reserve it for another, hereafter to be published, entitled The Theory of Punishment. Begin sub-footnote. This is the work which, from the author's papers, has since been published by Mr. Dumont in French, in company with The Theory of Reward and added to it for the purpose of mutual illustration. It is in contemplation to publish them both in English, from the author's manuscripts, with the benefit of any amendments that have been made by Mr. Dumont. To the same work I must refer the analysis of the several possible modes of punishment, a particular and minute examination of the nature of each, and of its advantages and disadvantages, the various other disquantations, which did not seem absolutely necessary to be inserted here. A very few words, however, concerning the ends of punishment, can scarcely be dispensed with. The immediate principle end of punishment is to control action. This action is either that of the offender or of others, that of the offender it controls by its influence, either on his will, in which case it is said to operate in the way of reformation, or on his physical power, in which case it is said to operate by disablement, that of others it can influence, otherwise than by its influence over their wills, in which case it is said to operate in the way of example. A kind of collateral end, which it has a natural tendency to answer, is that of affording a pleasure or satisfaction to the party injured, where there is one, and in general, to parties whose ill will, whether on a self-regarding account, or on the account of sympathy or antipathy, has been excited by the offence. This purpose, as far as it can be answered, gratis, is a beneficial one, but no punishment ought to be allotted merely to this purpose because, setting aside its effects in a way of control, no such pleasure is ever produced by punishment as can be equivalent to the pain. The punishment, however, which is allotted to the other purpose, ought as far as it can be done without expense, to be accommodated to this satisfaction thus administered to a party injured, in the shape of a disocial pleasure, may be styled a vindictive satisfaction, or compensation, as a compensation administered in the shape of self-regarding profit, or stock of pleasure, may be styled a lucrative one. Example is the most important end of all, in proportion as the number of the persons under temptation to be offended is to one. End footnote. Three it is plain, therefore, that in the following cases punishment ought not to be inflicted. One where it is groundless, where there is no mischief for it to prevent, the act not being mischievous upon the whole. Two where it is ineffectuous, where it cannot act so as to prevent the mischief. Three where it is unprofitable or too expensive, where the mischief it would produce would be greater than that what it prevented. Four where it is needless, where the mischief may be prevented, or cease of itself, without it, that is, at a cheaper rate. Section two causes in which punishment is groundless. These are four, one, where there has never been any mischief, where no mischief has been produced to anybody by the act in question. Of this number are those in which the act was such as might, on some occasions, be mischievous or disagreeable, but the person whose interest it concerns gave his consent to the performance of it. This consent, provided it be free and fairly obtained, is the best proof that can be produced that to the person who gives it no mischief, at least no immediate mischief, upon the whole is done, for no man can be so good a judge as the man himself. What it is gives him pleasure or displeasure. Five, two, where the mischief was outweighed, although a mischief was produced by the act, yet the same act was necessary to the production of a benefit, which was of greater value than the mischief. This may be the case with anything that is done in the way of precaution against instant columnity, as also with anything that is done in the exercise of the several sorts of powers necessary to be established in every community, to wit, domestic, judicial, military, and supreme. Six, three, where there is a certainty of an adequate compensation and that in all cases where the offence can be committed. This supposes two things, one, that the offence is such as admits of an adequate compensation, two, that such a compensation is sure to be forthcoming. Of these suppositions the latter will be found to be a merely ideal one, a supposition that cannot, in the universality here given to it, be verified by fact. It cannot, therefore, in practice, be numbered amongst the grounds of absolute impunity. This may, however, be admitted as a ground for an abatement of that punishment which other considerations standing by themselves would seem to dictate. Begin footnote. This, for example, seems to have been one ground at least of the favor shown by perhaps all systems of laws to which offenders as stand upon a footing of responsibility, known not directly, indeed, to the persons themselves, but to such offenses as none but responsible persons are likely to have the opportunity of engaging in. In particular, this seems to be the reason why embezzlement, in certain cases, has not commonly been punished upon the footing of theft, nor mercantile frauds upon that of common sharpening. End footnote. Section three. Causes in which punishment must be ineffectuous. These are seven. One where the penal provision is not established until after the act is done, such are the cases one of an ex post facto law where the legislator himself appoints not a punishment till after the act is done, two of a sentence beyond the law where the judge on his own authority appoints a punishment which the legislator had not appointed. Eight. Two. Where the penal provision, though established, is not conveyed to the notice of the person on whom it seems intended that it should operate, such is the case where the law has omitted to employ any of the expedients which are necessary to make sure that every person whatsoever who is within the reach of the law be appraised of all the cases whatsoever in which, being in the station of life he is in, he can be subjected to the penalties of the law. Nine. Three. Where the penal provision, though it were conveyed to a man's notice, could produce no effect on him with respect to the preventing him from engaging in any act of the sort in question, such is the case, one, in extreme infancy, where a man has not yet attained that state or disposition of mind in which the prospect of evils, so distant as those which are held forth by law, has the effect of influencing his conduct, two, in insanity, where the person, if he has attained it to that disposition, has since been deprived of it through the influence of some permanent, though unseen, cause. Three. Intoxication. Where he has been deprived of it by the transient influence of a visible cause, such as the use of wine or opium or other drugs that act in this manner on the nervous system, which condition is indeed neither more nor less than a temporary insanity produced by an assignable cause. Again, footnote. Notwithstanding what is here said, the cases of infancy and intoxication, as we shall see hereafter, cannot be looked upon in practice as affording sufficient grounds for absolute impunity, but this exception in point of practice is no objection to the propriety of the rule in point of theory. The ground of the exception is neither more nor less than the difficulty there is of asserting the matter of fact, these whether at the requisite point of time the party was actually in the state in question, that is, whether a given case comes really under the rule. Suppose the matter of fact capable of being perfectly ascertained, without danger or mistake, the impropriety of punishment would be as indubitable in those cases as in any other. The reason that it is commonly assigned for the establishing an exception from punishment in favor of infants, insane persons, and persons under intoxication is either false in fact or confusedly expressed. The phrase is that the will of these persons concurs not with the act, that they have no vicious will, or that they have not the free use of their will. But suppose all this to be true. What is it to the purpose? Nothing, except in as far as it implies the reason given in the text. End Footnote 10. 4. Where the penal provision, although being conveyed to the party's notice, it might very well prevent his engaging in acts of the sort in question, provided he knew that it related to those acts could not have this effect with regard to the individual act he is about to engage in, to it, because he knows not that it is of the number of those to which the penal provision relates. This may happen, one, in the case of unintentionality, where he intends not to engage and thereby knows not that he is about to engage in the act in which, eventually, he is about to engage. 2. In the case of unconsciousness, where, although he may know that he is about to engage in the act itself, yet, from not knowing all the material circumstances attending it, he knows not of the tendency it has to produce that mischief, in contemplation of which it has been made penal in most instances. 3. In the case of misciposal, where, although he may know of the tendency the act has to produce that degree of mischief, he supposes it, though mistakenly, to be attended with some circumstance or set of circumstances, which, if it had been attended with, it would either not have been productive of that mischief, or have been productive of such a greater degree of good, as has determined the legislator in such cases not to make it penal. 11. 5. Where, though the penal clause might exercise a full and prevailing influence, where it is to act alone, yet by the predominant influence of some opposite cause upon the will, it must necessarily be ineffectual, because the evil which he sets himself about to undergo in the case of his not engaging in the act is so great that the evil denounced by the penal clause in case of his engaging in it cannot appear greater. This may happen, one, in the case of physical danger, where the evil is such as appears likely to be brought about by the unassisted powers of nature, two, in the case of a threatened mischief, where it is such as appears likely to be brought about through the intentional and conscious agency of man. Again footnote. The influences of the moral and religious sanctions, or in other words, of the motives of love of reputation and religion, are other causes, the force of which may, upon particular occasions, come to be greater than that of any punishment which the legislature is able, or at least which we will think proper to apply. These therefore it will be proper for him to have his eye upon. But the force of these influences is variable and different in different times and places. The force of the foregoing influences is constant and the same at all times and everywhere. These therefore it can never be proper to look upon as safe grounds for establishing absolute impunity, owing, as in the above mentioned cases of infancy and intoxication, to the impracticality of asserting the matter of fact. Second footnote. 12. 6. Where, though the penal clause may exert a full and prevailing influence over the will of the party, yet his physical facilities, owing to the predominant influence of some physical cause, are not in a condition to follow the determination of the will, in so much that the act is absolutely involuntary. Such is the case of physical compulsion or restraint, by whatever means brought about, where the man's hand, for instance, is pushed against some object which his will disposes him not to touch, or tied down from touching some object which his will disposes him to touch. Section 4. Cases where punishment is unprofitable. These are. 13. 1. Where on the one hand the nature of the offense, on the other hand, that of the punishment are, in the ordinary state of things, such that when compared together, the evil of the latter will turn out to be greater than that of the former. 14. Now evil of the punishment divides itself into four branches, by which so many different sets of persons are affected. 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, this is felt by those by whom the law is observed. 2. The evil of apprehension, or the pain which a man who has exposed himself to punishment, feels at the thoughts of undergoing it. This is felt by those by whom the law has been broken, and who feel themselves in danger of its being executed upon them. 3. The evil of sufferance, or the pain which a man feels in virtue of the punishment itself, from the time when he begins to undergo it. This is felt by those by whom the law is broken, and upon whom it comes actually to be executed. 4. The pain of sympathy, and the other derivative evils resulting to the persons who are in connection with the several classes of original sufferers just mentioned. Now, of these four lots of evil, the first will be greater or less according to the nature of the act, from which the party is restrained, the second and third according to the nature of the punishment which stands annexed to the offense. 15. On the other hand, as to the evil of the offense, this will also of course be greater or less according to the nature of each offense. The proposition between one evil and the other will therefore be different in the case of each particular offense. These cases, therefore, where punishment is unprofitable on this ground, can by no other means be discovered than by an examination of each particular offense, which is what will be the business of the body of the work. 16. Two. Where, although in the ordinary state of things, the evil resulting from the punishment is not greater than the benefit which is likely to result from the force with which it operates during the same space of time towards the excluding the evil of the offenses, yet it may have been rendered so by the influence of some occasional circumstances. In the number of these circumstances may be, one, the multitude of delinquents at a particular juncture, being such as would increase beyond the ordinary measure the quantum of the second and third lots, and thereby also of a part of the fourth lot in the evil of the punishment. Two. The extraordinary value of the services of someone delinquent in the case where the effect of the punishment would be to deprive the community of the benefit of those services. Three. The displeasure of the people, that is, of an indefinite number of the members of the same community in cases where, owing to of the influence of some occasional incident, they happen to conceive that the offense or the offender ought not to be punished at all, or at least ought not to be punished in the way in question. Four. The displeasure of foreign powers, that is, of the governing body or a considerable number of the members of some foreign community or communities with which the community in question is connected. Section Five. Cases where punishment is needless. These are. Seventeen. One. Where the purpose of putting an end to the practice may be attained as effectively at a cheaper rate by instruction is, 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 offenses which consist in the disseminating pernicious principle in matters of duty, of whatever kind the duty may be, whether political or 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 writer from endeavoring to inculcate his principles, yet it may the readers from adopting them without which his endeavoring to inculcate them will do no harm. In such a case the sovereign will commonly have little need to take an active part. If it be the interest of one individual to inculcate principles that are pernicious it will as 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 to combat error with, not the sword. CHAPTER XIV Of the Proportion Between Punishments and Offences Roman I We have seen that the general object of all laws is to prevent mischief. That is to say, when it is worthwhile, but that, where there are no other means of doing this than punishment, there are four cases in which it is not worthwhile. Roman II When it is worthwhile there are four subordinate designs or objects which in the course of his endeavors 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. Roman III I His first, most extensive, and most eligible object is to prevent in as far as it is possible, and worthwhile, all sorts of offenses whatsoever, in other words, so to manage that no offense whatsoever may be committed. CHAPTER I By offenses, I mean, at present, acts which appear to him to have a tendency to produce mischief. End of CHAPTER I Roman IV II 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. Roman V III If 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. Roman VI IV The last object is whatever the mischief be which it is proposed to prevent, to prevent it at as cheap a rate as possible. Roman 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. VII 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 produces of the positive or negative kind, are styled impelling or restraining. XI Motives VIII And footnote II Roman VIII Rule I The first object it has been seen is to prevent in as far as it is worthwhile all sorts of offenses, therefore the value of the punishment must be not less in any case than what is sufficient to outweigh that of the profit of the offense. Footnote III By the profit of an offense, it 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. Footnote XXIII C. IX Motives VIII And footnote XXIII It is the profit, that is the expectation of the profit, of the offense 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 burden. End Footnote XXIII Footnote IV Baccharia, Dei Deletti, Section VI, Id Trappar-Morley, Section XXIII End Footnote IV If it be the offense, unless some other considerations independent of the punishment should intervene and operate efficaciously in the character of tutelary motives, we'll be sure to be committed not withstanding. The whole lot of punishment will be thrown away. It will be altogether inefficacious. Footnote V C. CHAPTER XI Dispositions, XXIX End Footnote V Footnote VI 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 two hundred 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. Footnote XXIV Wilkins' Legislation of the Anglo-Saxons, pages 7172 C. Hume, Volume I, Appendix I, page 219 End Footnote XXIV 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 Strayon, 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 recognized, but upon examination it would be found that the freshest laws of the most civilized nations are continually falling into the same error. End Footnote XXV 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. End Footnote XXV This, in short, is the case where so ever the punishment is fixed while the Prophet of Delinquency is indefinite, or to speak more precisely, where the punishment is limited to such a mark that the Prophet of Delinquency may reach beyond it. End Footnote VI Footnote VII See Chapter XIII Cases on Meat, Section I. End Footnote VII Roman 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, Ceteris Paribus, is as the Prophet of the Offense. The quantum of the punishment must rise with the Prophet of the Offense. Ceteris 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. Footnote VIII See Chapter XI Dispositions XII End Footnote VIII So far, then, as the absence of any aggravation arising from extraordinary depravity of disposition, may operate, or at the utmost, so far as the presence of a ground of extenuation, resulting from the innocence or beneficence of the offender's disposition, can operate, the strength of the temptation may operate in abatement of the demand for punishment. But it can never operate so far as to indicate the propriety of making the punishment ineffectual, which it is sure to be when brought below the level of the apparent profit of the offence. The partial benevolence which would prevail for the reduction of it below this level would counteract as well those purposes which such a motive would actually have in view, as those more extensive purposes which benevolence ought to have in view. It would be cruelty not only to the public, but to the very persons in whose behalf it pleads, in its effects, I mean, however opposite in its intention. Cruelty to the public, that is cruelty to the innocent, by suffering them for want of an adequate protection to lie exposed to the mischief of the offence, cruelty even to the offender himself, by punishing him to no purpose, and without the chance of compassing that beneficial end, by which alone the introduction of the evil of punishment is to be justified. Roman 10, Rule 2, but whether a given offence shall be prevented in a given degree by a given quantity of punishment is never anything 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 offence, the greater is the expense which it may be worthwhile to be at in the way of punishment. Footnote 9. For example, if it can ever be worthwhile 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. Roman 11, Rule 3, the next object is to induce a man to choose always the least mischievous of two offences, wherefor? Where two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less. Footnote 10. Esprit d'élois 56 c 16. End Footnote 10. Roman 12. Rule 4. When a man has resolved upon a particular offence, the next object is to induce him to do no more mischief than what is necessary for his purpose. Therefore, the punishment should be adjusted in such manner to each particular offence, but for every part of the mischief there may be a motive to restrain the offender from giving birth to it. Note 11. If any one have any doubt of this, let him conceive the offence to be divided into as many separate offences as there are distinguishable parcels of mischief that result from it. Let it consist, for example, in a man's giving you ten blows, or stealing from you ten shillings. If then, for giving you ten blows, he has punished no more than for giving you five. The giving you five of these ten blows is an offence for which there is no punishment at all. Which being understood, as often as a man gives you five blows, he will be sure to give you five more, since he may have the pleasure of giving you these five for nothing. In like manner, if for stealing from you ten shillings he has punished no more than for stealing five, the stealing of the remaining five of those ten shillings is an offence for which there is no punishment at all. This rule is violated in almost every page of every body of laws I have ever seen. The profit it is to be observed, though frequently, is not constantly proportioned to the mischief. For example, where a thief, along with the things he covets, steals others which are of no use to him. This may happen through wantonness, indolence, precipitation, et cetera, et cetera. End Footnote XI. Roman XIII. Rule V. The last object is, whatever mischief is guarded against, to guard against it at as cheap a rate as possible. Therefore, the punishment ought in no case to be more than what is necessary to bring it into conformity with the rules here given. Rule VI. It is further to be observed that owing to the different manners and degrees in which persons under different circumstances are affected by the same exciting cause, a punishment which is the same in name will not always either really produce, or even so much as appear to others to produce, in two different persons the same degree of pain. Therefore, that the quantity actually indicted on each individual offender may correspond to the quantity intended for similar offenders in general. The several circumstances influencing sensibility ought always to be taken into account. Footnote XII. C Chapter VI. Sensibility. End Footnote XII. Roman 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 below which a punishment ought not to be diminished. The fifth, the limits on the side of increase, the limits above which it ought not to be increased. The five first are calculated to serve as guides to the legislator. The sixth is calculated in some measure indeed to the same purpose, but principally for guiding the judge in his endeavours to conform on both sides to the intentions of the legislator. Roman 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 in 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. Footnote XIII. C Chapter IV. Value. End Footnote XIII. 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 offense, it must receive a proportional addition in point of magnitude. Footnote XIV. It is for this reason, for example, that simple compensation is never looked upon as sufficient punishment for theft or robbery. End Footnote XIV. Romans XVII. Yet farther. To make sure of giving the value of the punishment the superiority over that of the offense, it may be necessary, in some cases, to take into account the profit not only of the individual offense to which the punishment is to be annexed, but also of such other offenses of the same sort as the offender is likely to have already committed without detection. In 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 offense 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. ROMAN 18 RULES 7 These things being considered, the three following rules may be laid down by way of supplement and explanation to Rule 1. To enable the value of the punishment to outweigh that of the profit of the offense, it must be increased in point of magnitude, in proportion as it falls short in point of certainty. ROMAN 19 RUL 8 Punishment must be further increased in point of magnitude, in proportion as it falls short in point of proximity. ROMAN 20 RUL 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 offense, but of such other-like offenses as are likely to have been committed with impunity by the same offender. ROMAN 21 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. ROMAN 22 RUL 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. ROMAN 23 RUL 11 In particular, this may sometimes be the case where the punishment proposed is of such a nature as to be particularly well calculated to answer the purpose of a moral lesson. ROMAN 24 RUL 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 conditions. It is this, for example, if anything, that must justify the application of so severe a punishment as the infamy of a public exhibition, here and after proposed, for him who lifts up his hand against a woman, or against his father, see B-1, titled Simp Corporal Injuries. It is partly on this principle, I suppose, that military legislators have justified to themselves the inflicting of death upon the soldier who lifts up his hand against his superior officer. END FOOTNOTE 15 ROMAN 24 RUL 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. C CHAPTER XIII CASES UNMEET SECTION 4 END FOOTNOTE 16 ACCORDINGLY, in adjusting the quantum of punishment, the circumstances by which all punishments may be rendered unprofitable ought to be attended to. ROMAN 25 RUL 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. For 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. FOOTNOTE 17 C B II TITLE PERPOSES APPENDICS TITLE COMPOSITION END FOOTNOTE 17 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 offenses, 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. FOOTNOTE 18 Notwithstanding this rule, my fear is that in the ensuing model, I may be thought to have carried my endeavors at proportionality too far. Hitherto scarce any attention has been paid to it. Montesquieu seems to have been almost the first to us 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 anything seems superfluous, it is easy to retrench. END FOOTNOTE 18 26 It may be remembered that the political sanction, being that to which the sort of punishment belongs, which in this chapter is all along in view, is but one of four sanctions, which may all of them contribute their share towards producing the same effects. It may be expected, therefore, that in adjusting the quantity of political punishment, allowance should be made for the assistance it may meet with from those other 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 determined enough to be depended upon. FOOTNOTE 19 CB1 TITLED PUNISHMENTS END FOOTNOTE 19 It can never be reduced, like political punishment, into exact lots, nor meet it out in number, quantity, and value. Legislator is therefore obliged to provide the full compliment of punishment, as if he were sure of not receiving any assistance whatever from any of those quarters. If he does, so much the better. But lest he should not, it is necessary he should, at all events, make that provision which depends upon himself. ROMAN 27 It may be of use, in this place, to recapitulate the several circumstances which, in establishing their proportion between punishments and offenses, are to be attended to. These seem to be as follows. 1. On the part of the offense. 1. The prophet of the offense. 2. The mischief of the offense. 3. The prophet and mischief of other greater or lesser offenses of different sorts which the offender may have to choose out of. 4. The prophet and mischief of other offenses of the same sort which the same offender may probably have been guilty of already. 2. On the part of the punishment. 5. The magnitude of the punishment composed of its intensity and duration. 6. The deficiency of the punishment in point of certainty. 7. The deficiency of the punishment in point of proximity. 8. The quality of the punishment. 9. The accidental advantage in point of quality of a punishment, not strictly needed in point of quantity. 10. The use of a punishment of a particular quality in the character of a moral lesson. 3. On the part of the offender. 11. The responsibility of the class of persons in a way to offend. 12. The sensibility of each particular offender. 13. 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. 14. The multitude of offenders on any particular occasion. 4. On the part of the public at any particular conjuncture. 15. The inclinations of the people, for or against any quantity or mode of punishment. 16. The inclinations of foreign powers. 5. On the part of the law, that is, of the public for a continuance. 17. The necessity of making small sacrifices in point of portionality for the sake of simplicity. 18. Roman XXVIII. There are some, perhaps, who at first sight may look upon the nicety employed in the adjustment of such rules as so much labor lost. For gross ignorance, they will say, never troubles itself about laws, and passion does not calculate. 19. 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. 20. See Appendix titled Promulgation and Footnote 20. 21. 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. 21. There are few madmen but what are observed to be afraid of the straight waistcoat. End Footnote 21. 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. 21. 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. Chapter 15 of An Introduction to the Principles of Morals and Legislation This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. An Introduction to the Principles of Morals and Legislation by Jeremy Bentham Chapter 15 of the Properties to be Given to a Lot of Punishment It has been shown what the rules are, which ought to be observed in adjusting the proportion between the punishments and the offence. 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 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 offence 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 become formable unless for every variation in point of quantity in the mischief of the species of offence to which it is annexed, such lot of punishment admits of a correspondent variation. To prove this, that 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 a 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 offence. This property might perhaps be termed in a single word variability. A second property, intimately connected with the former, may be styled aquability. 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 inequitable one, when free from it an inequitable 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 various 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. An example of a mode of punishment which is apt to be unequable is that of banishment, when the locus are 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 know. 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 slid 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. 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 it with reference to other punishments. 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. One, by adding to the lesser punishment another quantity of punishment of the same kind. Two, 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. Again punishment cannot act any farther than in as far as the idea of it and of its connection with the offence is present in the mind. The idea of it, if not present, cannot act at all, and then the punishment itself must be inefficacious. Now to be present it must be remembered and to be remembered it must have been learned, but of all punishments that can be imagined there are none of which the connection with the offence is either so easily learned or so efficaciously remembered as those of which the idea is already in part associated with some part of the idea of the offence which is the case when the one and the other have some circumstance that belongs to them in common. When this is the case with a punishment and an offence the punishment is set to bear an analogy to or to be characteristic of the offence. Characteristicness is therefore a fourth property which on this account ought to be given whenever it can conveniently be given to a lot of punishment. 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 offence and a punishment in common is the hurt or damage which they reproduce. The closest analogy therefore that can subsist between an offence and the punishment and next 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 offence 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. 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's 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 their purpose an additional real punishment is employed this additional real punishment is needless. As to these less expensive means they consist one in the choice of a particular mode of punishment a punishment of a particular quality independent of the quantity. Two in a particular set of solemnities distinct from the punishment itself and accompanying the execution of it. 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 sword 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. 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. 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-regardened 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-procuniary kind as consists in the subtraction of such a species of possession and 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. 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. 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 circumstances. In the first place the four distinct ends into which the main and general end of punishment is divisible may give rise to so many distinct properties according as any particular mode of punishment 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 compensation. 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 strongest attendency 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 offense. The punishment most subservient to reformation will be the sort of punishment that is best calculated to invalidate the force of that motive. 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 irreversible 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. 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 and puzzlement and every species of defraudment the motive punishment best adapted to this purpose seems in most cases to be that of penal labour. 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 imperfection 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 to others. The mischief therefore of the offence must be so great as to demand a very considerable lot of punishment for the purpose of example before it can warrant the application of a punishment equal to that which is necessary for the purpose of disablement. 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 anything else an infliction of this sword may seem more to savor 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. In ordinary cases the purpose may be 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 favor of some relation in which the offender stands with reverence 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 offenses which consist in an abuse of the privileges of marriage or of the liberty of carrying on any lucrative or other occupation. 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. 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 absent of unpopularity for it cannot be expected in regard to such a matterous punishment that any species or a lot of it should be positively acceptable and grateful to the people. It is sufficient for the most part if they have no decided a version to the thoughts of it. Now the property of characteristicness above noticed seems to go as far towards conciliating the appropriation of the people to a mode of punishment as any in so much that popularity may be regarded as a kind of secondary quality depending upon that of characteristicness. 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 code and necessity any mode or a lot of punishment to watch which he happens to perceive any violent aversion entertained by the body of the people. 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 offence 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. 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 are 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 now 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. 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 whether sufferer is innocent of the offence. 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 helpful. 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 chronicle punishment such as imprisonment, banishment, penal labour and the like. So much as consists of acute punishment to it whether 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. For 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 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 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. 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. It may not be amiss to bring together an exhibit in one view the eleven properties above established. They are as follows. Two of them are concerned in establishing a proper proportion between a single offence and its punishment that is one variability two equability. One in establishing a proportion between more offences than one and more punishments than one that is three commensurability. 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 that is four characteristicness. 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 that is five exemplarity six frugality Three others contribute separately to the three inferior ends of punishment that is seven subserviency to reformation eight efficacy in disabling nine subserviency to compensation another property tends to exclude a collateral mischief which a particular mode of punishment is liable accidentally to produce that is ten popularity the remaining property tends to palliate a mischief which all punishment as such is liable accidentally to produce that is eleven remissibility the properties of commensurability characteristicness 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 purposes we now come to take a general survey of the system of offences that is of such acts to which on account of the mischief its 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 and of chapter 15 are in the public domain for more information or to volunteer please visit LibriVox.org please note that in the following recording footnotes have been omitted for the sake of intelligibility Division of Offences Section 1 Classes of Offences 1. It is necessary at the outset to make a distinction between such acts as are or may be and such as ought to be offenses an act may be an offense which they whom the community are of in the habit of obeying shall be pleased to make one that too is any act which they shall be pleased to prohibit or to punish but upon the principle of utility such acts alone ought to be made offenses as the good of the community requires should be made so 2. The good of the community cannot require that any act should be made an offense which is not liable in some way or other to be detrimental to the community for in the case of such an act all punishment is groundless 3. But if the whole assemblage of any number of individuals be considered as constituting an imaginary compound body a community or political state any act that is detrimental to any one or more of those members is as to so much of its effects detrimental to the state 4. An act cannot be detrimental to a state but by being detrimental to someone or more of the individuals that compose it but these individuals may be either assignable or unassignable 5. When there is any assignable individual to whom an offense is detrimental that person may either be a person other than the offender or the offender himself 6. Offenses that are detrimental in the first instance to assignable persons other than the offender may be termed by one common name offenses against individuals and of these may be composed the first class of offenses to contrast them with offenses of the second and fourth classes it may also sometimes be convenient to style them private offenses to contrast them at the same time with offenses of the third class they may be styled private extra regarding offenses when it appears in general that there are persons to whom the act in question may be detrimental but such persons cannot be individually assigned the circle within which it appears that they may be found is either of less extent than that which comprises the whole community or not if of less the persons comprised within this lesser circle may be considered for this purpose as composing a body of themselves comprised within but distinguishable from the greater body of the whole community the circumstance that constitutes the union between the members of this lesser body may be either their residence within a particular place or in short any other less explicit principle of union which may serve to distinguish them from the remaining members of the community in the first case the act may be styled an offense against a neighborhood in the second an offense against a particular class of persons in the community offenses then against a class or neighborhood may together constitute the second class of offenses to contrast them with private offenses on the one hand and public on the other they may also be styled semi-public offenses eight offenses which in the first instance are detrimental to the offender himself and to no one else unless it be by their being detrimental to himself may serve to compose but a third class to contrast them the better with offenses of the first second and fourth classes all which are of transitive nature they might be styled in transitive offenses but better still self-regarding nine the fourth class may be composed of such acts as ought to be made offenses on account of the distant mischief which they threaten to bring upon unassignable indefinite multitude of the whole number of individuals of which the community is composed although no particular individual should appear more likely to be a sufferer by them than another these may be called public offenses or offenses against the state ten a fifth class or appendix may be composed of such acts as according to the circumstances in which they're committed or and more particularly according to the purposes to which they are applied may be detrimental to any one of the ways in which the act of one man can be detrimental to another these may be termed multi-form or heterogeneous offenses offenses that are in this case may be reduced to two great heads first offenses by falsehood and second offenses against trust end of chapter 16 section one chapter 16 section two part a the principles of morals and legislation this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org the principles of morals and legislation Jeremy Bentham chapter 16 divisions and subdivisions section two part a 11 let us see by what methods these classes may be further subdivided first then with regard to offenses against individuals in the present period of existence a man's being and well-being his happiness and his security in a word his pleasures and his immunity from pains are all dependent more or less in the first place upon his own person and in the next place upon the exterior objects that surround him these objects are either things or other persons under one or other of these classes must evidently be comprised every sort of exterior object by means of which his interest can be affected if then by means of any offense a man should on any occasion become a sufferer it must be in one or other of two ways one absolutely to wit immediately in his own person in which case the offense may be said to be an offense against his person or two relatively by reason of some material relation which the before mentioned exterior objects may happen to bear in the way of causality to his happiness now in as far as a man is in a way to derive either happiness or security from any object which belongs to the class of things such thing is said to be his property or at least he is said to have a property or an interest therein an offense therefore which tends to lessen the facility he might otherwise have of deriving happiness or security from an object which belongs to the class of things may be styled an offense against his property with regard to persons in as far as from objects of this class a man is in a way to derive happiness or security it is in virtue of their services in virtue of some services which by one sort of inducement or another they may be disposed to render him now then take any man by way of example and the disposition whatever it may be which he may be in to render you service either has no other connection to give birth or support to it than the general one that binds him to the whole species or it has some connection more particular in the latter case such a connection may be spoken of as constituting in your favor a kind of fictitious or incorporeal object of property which is styled your condition an offense therefore the tendency of which is to lessen the facility you might otherwise have of deriving happiness from the services of a person thus specially connected with you may be styled an offense against your condition in life or simply against your condition conditions in life must evidently be as various as the relations by which they are constituted this will be seen more particularly farther on in the meantime those of husband wife parent child master servant citizen of such or such a city natural born subject of such or such a country may answer the purposes of example where there is no such particular connection or what comes to the same thing where the disposition whatever it may be which a man is to render you service is not considered as depending upon such connection but simply upon the good will he bears to you in such case in order to express what chance you have of deriving a benefit from his services a kind of fictitious object of property is spoken of as being constituted in your favor and is called your reputation an offense therefore the tendency of which is to lessen the facility you might otherwise have had of deriving happiness or security from the services of persons at large whether connected with you or not by a special tie may be styled an offense against your reputation it appears therefore that if by any offense in an individual becomes a sufferer it must be in one or other of the four points above mentioned this his person his property his condition in life or his reputation these sources of distinction then may serve to form as so many subordinate divisions if any offenses should be found to affect a person in more than one of these points at the same time such offenses may respectively be put under so many separate divisions and such compound divisions may be subjoined to the preceding simple ones the several divisions simple and compound together which are here and after established stand as follows one offenses against person two offenses against reputation three offenses against property four offenses against condition five offenses against person and property together six offenses against person and reputation together 12 next with regard to semi-public offenses pain considered with reference to the time of the act from which it is liable to issue must it is evident be either present past or future in as far as it is either present or past it cannot be the result of any act which comes under the description of a semi-public offense for if it be present or past the individuals who experience or have experienced it are assignable there remains that sort of mischief which if it ever came to exist at all is as yet but future mischief thus circumstance takes the name of danger now then when by means of the act of any personal whole neighborhood or other class of persons are exposed to danger this danger must either be intentional on his part or unintentional if unintentional such danger when it is converted into actual mischief makes the name of a calamity offenses productive of such danger may be styled semi-public offenses operating through calamity or more briefly offenses through calamity if the danger be intentional in so much as it might be produced and might convert itself into actual mischief without the concurrence of any calamity it may be said to originate in mere delinquency offenses then which without the concurrence of any calamity tend to produce such danger as disturbs the security of a local or other subordinate class of persons may be styled semi-public offenses operating merely by delinquency or more briefly offenses of mere delinquency 13 with regard to any farther subdivisions offenses through calamity will depend upon the nature of the several calamities to which man and the several things that are of use to him stand exposed these will be considered in another place 14 semi-public offenses of mere delinquency will follow the method of division applied to offenses against individuals it will easily be conceived that whatever pain or inconvenience any given individual may be made to suffer to the danger of that pain or inconvenience may any number of individuals assignable or not assignable be exposed now there are four points or articles as we have seen in respect to which an individual may be made to suffer pain or inconvenience if then with respect to any one of them the connection of causes and effects is such that to the danger of suffering in that article a number of persons who individually are not assignable may by the delinquency of one person be exposed such article will form a ground of distinction on which a particular subdivision of semi-public offenses may be established if with respect to any such article no such effect can take place that ground of distinction will lie for the present unoccupied ready however upon any change of circumstances or in the manner of viewing the subject to receive a correspondent subdivision of offenses if ever it should seem necessary that any such offenses should be created 15 we come next to self-regarding offenses or more properly to acts productive in the first instance of no other than a self-regarding mischief acts which if in any instance it be thought to fit to constitute them offenses will come under the denomination of offenses against oneself this class will not for the present give us much trouble for it is evident that in whatever points a man is vulnerable by the hand of another in the same points may he be conceived to be vulnerable by his own whatever divisions therefore will serve for the first class the same will serve for this as to the questions what acts are productive of a mischief of this stamp and among such are which it may and which it may not be worthwhile to treat upon the footing of offenses these are points the latter of which at least is too unsettled and too open to controversy to be laid down with that degree of confidence which is implied in the exhibition of properties which are made use of as the groundwork of an arrangement properties for this purpose ought to be such as show themselves at first glance and appear to belong to the subject beyond dispute 16 public offenses may be distributed under 11 divisions first offenses against external security second offenses against justice third offenses against the preventive branch of the police fourth offenses against the public force fifth offenses against the positive increase of the national publicity six offenses against the public wealth seventh offenses against population 8. Offences against the national wealth, 9. Offences against the sovereignty, 10. Offences against religion, 11. Offences against the national interest in general. The way in which these several sorts of offenses can connect with each other, and with the interest of the public, that is, of an unassignable multitude of the individuals of which that body is composed, may thus be conceived. 17. Mischief by which the interest of the public, as above defined, may be affected, must, if produced at all, be produced either by means of an influence exerted on the operations of government or by other means without the exertion of such influence. To begin with the latter case, mischief be it what it will, and let it happen to whom it will, must be produced either by the unassisted powers of the agent in question, or by the instrumentality of some other agents. In the latter case, these agents will be either persons or things. Persons, again, must be either not members of the community in question or members. Mischief produced by the instrumentality of persons, may accordingly be produced by the instrumentality either of external or of internal adversaries. Now, when it is produced by the agent's own unassisted powers, or by the instrumentality of internal adversaries, or only by the instrumentality of things, it is seldom that it can show itself in any other shape, setting aside any influence it may exert on the operations of government. Then either that of an offense against assignable individuals, or that of an offense against a local or other subordinate class of persons. If there should be a way in which mischief can be produced by any of these means to individuals altogether unassignable, it will scarcely be found conspicuous or important enough to occupy a title by itself. It may accordingly be referred to the miscellaneous head of offenses against the national interest in general. The only mischief of any considerable amount, which can be made to impend indiscriminately over the whole number of members in the community, is that complex kind of mischief which results from a state of war and is produced by the instrumentality of external adversaries, by their being provoked, for instance, or invited, or encouraged to invasion. In this way, may a man very well bring down a mischief and that a very heavy one upon the whole community in general, and that without taking apart in any of the injuries which came in consequence to be offered to particular individuals. Next, with regard to the mischief which an offense may bring upon the public by its influence on the operations of the government. This it may occasion either, first, in a more immediate way, by its influence on those operations themselves, second, in a more remote way, by its influence on the instruments by or by the help of which those operations should be performed, or third, in a more remote way still, by its influence on the sources from whence such instruments are to be derived. First then, as to the operations of government, the tendency of these in as far as it is conformable to what, on the principle of utility it ought to be, is in every sense either to avert mischief from the community or to make an addition to the sum of positive good. Now, mischief, we have seen, must come either from external adversaries, from internal adversaries, or from calamities. With regard to mischief from external adversaries, there requires no further division. As to mischief from internal adversaries, the expedience employed for averting it may be distinguished into such as may be applied before the discovery of any mischievous design in particular, and such as cannot be employed but in consequence of the discovery of some such design. The former of these are commonly referred to a branch which may be styled the preventive branch of the police, the latter to that of justice. Secondly, as to the instruments which government, whether in the averting of evil or in the producing of positive good, can have to work with, these must be either persons or things. Those which are destined to the particular function of guarding against mischief from adversaries in general, but more particularly from external adversaries, may be distinguished from the rest under the collective appellation of the public military force, and for conciseness's sake the military force. The rest may be characterized by the collective appellation of the public wealth. Thirdly, with regard to the sources or funds from whence these instruments, however applied, must be derived, such of them as come under the denomination of persons must be taken out of the whole number of persons that are in the community, that is out of the total population of the state, so that the greater the population, the greater the citrus parables be this branch of the public wealth, and the less the less. In like manner, such as come under the denomination of things may be, and most of them commonly are, taken out of the sum total of those things which are the separate properties of the several members of the community, the sum of which properties may be termed the national wealth, so that the greater the national wealth, the greater citrus parables may be this remaining branch of the public wealth, and the less the less. It is here to be observed that if the influence exerted on any occasion by any individual over the operations of the government be pernicious, it must be in one or other of two ways. One, by causing or tending to cause operations not to be performed, which ought to be performed, in other words, by impeding the operations of government, or two, by causing operations to be performed, which ought not to be performed, in other words, by misdirecting them. Lastly, to the total assemblage of the persons by whom the several political operations above mentioned come to be performed, we set out with applying the collective appellation of the government. Among these persons, there commonly is some one person or body of persons whose office it is to assign and distribute to the rest. There are several departments to determine the conduct to be pursued by each in the performance of the particular set of operations that belongs to him, and even upon occasion to exercise his function in his stead. Where there is any such person or body of persons, he or it may, according to the turn of the phrase requires, be termed the sovereign or the sovereignty. Now it is evident that to impede or misdirect the operations of the sovereign, as here described, may be to impede or misdirect the operations of the several departments of government as described above. From this analysis, by which the connection between several above mentioned heads of offenses is exhibited, we may now collect a definition for each article. By offenses against external security, we may understand such offenses whereof the tendency is to bring upon the public a mischief resulting from the hostilities of foreign adversaries. By offenses against justice, such offenses whereof the tendency is to impede or misdirect the operations of that power which is employed in the business of guarding the public against the mischiefs resulting from the delinquency of internal adversaries, as far as it is to be done by expedience, which do not come to be applied in any case till after the discovery of some particular design of the sort of those which they are calculated to prevent. By offenses against the preventive branch of the police, such offenses whereof the tendency is to impede or misdirect the operations of that power which is employed in guarding against mischiefs resulting from the delinquency of internal adversaries, by expedience that come to be applied beforehand, or of that which is employed in guarding against the mischiefs that might be occasioned by physical calamities. By offenses against the public force, such offenses whereof the tendency is to impede or misdirect the operations of that power which destined to guard the public from the mischiefs which may result from the hostility of foreign adversaries, and in case of necessity, in the capacity of ministers of justice, from mischiefs of the number of those which result from the delinquency of internal adversaries. By offenses against the increase of the national felicity, such offenses whereof the tendency is to impede or misapply the operations of those powers that are employed in the conducting of various establishments, which are calculated to make, in so many different ways, a positive addition to the stock of public happiness. By offenses against the public wealth, such offenses whereof the tendency is to diminish the amount or misdirect the application of the money and other articles of wealth which the government reserves as a fund, out of which the stock of instruments employed in the service above mentioned may be kept up. By offenses against population, such offenses whereof the tendency is to diminish the numbers or impair the political value of the sum total of the members of the community. By offenses against the national wealth, such offenses whereof the tendencies to diminish the quantity or impair the value of the things which compose the separate properties or states of the several members of the community. 18. In this deduction it may be asked what place is left for religion. This we shall see presently. For combating the various kinds of offenses above enumerated, that is for combating all the offenses, those not accepted, which we are now about considering, which it is in man's nature to commit, the state has two great engines, punishment and reward. Punishment to be applied to all and upon all ordinary occasions. Reward to be applied to a few for particular purposes and upon extraordinary occasions. But whether or no a man has done the act which renders him an object to meet for punishment or reward, the eyes of those who whosoever they be, to whom the management of these engines is entrusted cannot always see nor where it is punishment that is to be administered, can their hands be always sure to reach him. To supply these deficiencies in point of power it is thought necessary or at least useful without which the truth of the doctrine would be nothing to the purpose. To inculcate into the minds of the people the belief of the existence of a power applicable to the same purposes and not liable to the same deficiencies. The power of a supreme invisible being to whom a disposition of contributing to the same ends to which the several institutions already mentioned are calculated to contribute must for this purpose be ascribed. It is of course expected that this power will at one time or other be employed in the promoting of those ends, and to keep up and strengthen this expectation among men it is spoken of as being the employment of a kind of allegorical personage feigned as before for convenience of discourse and styled religion. To diminish then or misapply the influence of religion is protanto to diminish or misapply what power the state has of combating with effect any of the before enumerated kinds of offenses, that is all kinds of offenses whatsoever. Acts that appear to have this tendency may be styled offenses against religion. Of these then may be composed the tenth division of the class of offenses against the state. Nineteen, if there be any act which appear liable to affect the state in any one or more of the above ways by operating in prejudice of the external security of the state or of its internal security of the public force of the increase of the national felicity of the public wealth of the rational population of the national wealth of the sovereignty or of religion at the same time that it is not clear in which of all these ways they will affect it most nor but that according to contingencies they may affect it in one of these ways only or in another. Such acts may be collected under a miscellaneous division by themselves and styled offenses against the national interest in general. Of these then may be composed the eleventh and last division of the class of offenses against the state. Twenty, we come now to class the fifth consisting of multi-form offenses. These as has been already intimated are either offenses by falsehood or offenses concerning trust. Under the head of offenses by falsehood may be comprehended sample falsehoods, forgery, personation, perjury. Let us observe in what particulars the four kinds of falsehood agree and in what they differ. Twenty one, offenses by falsehood however diversified in other particulars have this in common that they consist in some abuse of the faculty of discourse or rather as we shall see hereafter of the faculty of influencing the sentiment of belief in other men whether by discourse or otherwise. The use of discourse is to influence belief and that in such manner as to give other men to understand that things are as they are really. Falsehoods of whatever kind they be agree in this that they give men to understand that things are otherwise than they in reality they are. Twenty two, personation, forgery, and perjury are each of them distinguished from other modes of uttering falsehood by certain special circumstances. When a falsehood is not accompanied by any of those circumstances it may be styled simple falsehood. These circumstances are first the form in which the falsehood is uttered, the second the circumstance of its relating or not to the identity of the person of him who utters it, and third the solemnity of the occasion on which it is uttered. The particular application of these distinctive characters may more commodiously be reserved for another place. Twenty three, we come now to the subdivisions of offenses by falsehood. These will bring us back into the regular track of analysis pursued without deviation through the four preceding classes. By whatever means a mischief is brought about whether falsehood be or be not of the number the individuals liable to be affected by it must either be assignable or unassignable. If assignable there are but four material articles in respect to which they can be affected to it, their persons, their properties, their reputations, and their conditions in life. The case is the same if, though unassignable, they are compriseable in any class subordinate to that which is composed of the whole number of members of the state If the falsehood tend to the detriment of the whole state it can only be by operating in one or other of the characters which every act that is an offense against the state must assume. i.e. that of an offense against external security, against justice, against the preventive branch of the police, against the public force, against the increase of the national felicity, against the public wealth, against the national population, against the national wealth, against the sovereignty of the state or against its religion. 24. It is the common property then of the offenses that belong to this division to run over the same ground that is occupied by those of the preceding classes. But some of them, as we shall see, are apt on various occasions to drop or change the names which bring them under this division. This is chiefly the case with regard to simple falsehoods. Others retain their names unchanged and even thereby supersede the names which would otherwise belong to the offenses which they denominate. This is clearly the case with regard to personation, forgery, and perjury. When this circumstance then, the circumstance of falsehood, intervenes. In some cases, the name which takes the lead is that which indicates the offense by its effect. In other cases, it is that which indicates the expedient or instrument, as it were, by the help of which the offense is committed. Falsehood, take it by itself, consider it as not being accompanied by any other material circumstances, nor therefore productive of any material effects, can never, upon the principle of utility, constitute any offense at all. Combined with other circumstances, there is scarce any sort of pernicious effect which it may not be instrumental in producing. It is therefore rather in compliance with the laws of language than in consideration of the nature of the things themselves that falsehoods are made separate mention of under the name and in the character of distinct offenses. All this would appear plain enough if it were now a time for entering into particulars, but that is what cannot be done consistently with any principle of order or convenience until the inferior divisions of those other classes shall have been previously exhibited. End of Chapter 16, Section 2, Part A.