SoP
THE
RATIONALE OF PUNISHMENT.
BY
JEREMY BENTHAM,
LONDON:
PUBLISHED BY ROBERT HEWARD, -
WELLINGTON STREET, STRAND. f^O s
MDCCCXXX.
<>
/ -
LONDON :
PRINTED BY C. AND W. REYNELL,
Broad Street, Golden Square.
ADVERTISEMENT.
THE following account is given by M. Dumont
of his labours, with respect to the two volumes
published by him at Paris in 1811, under the title
of Theorie des Peines et des Recompenses. Of this
work, three editions have been printed in France,
and one in England.
" When I published in Paris in 1802 Les Traites
de Legislation Civile et Penale, in three volumes, I
announced other works of the same kind, which I
had, in the same manner, extracted from the manu
scripts of Mr Bentham, but which were not then
ready for the press.
" Success has encouraged my labours : three
thousand copies were distributed more rapidly
than I had dared to hope would be the case with
the first work of a foreign author, but little known
upon the continent. I have reason also to think
ADVERTISEMENT.
that all recent as this work is, it has not been
without its influence, since it has been frequently
quoted in many official compositions relating to
civil or criminal codes.
" But circumstances which prevented these new
volumes from entering upon the same course of
circulation as the preceding have sometimes cooled
my zeal, and I should willingly have resigned the
task I had imposed upon myself, if the author
would have undertaken it himself. Unhappily,
he is as little disposed so to do as ever, and if these
works do not appear in the French dress which I
have given them, it is most probable that they will
remain shut up in his cabinet.
"They have lain there thirty years : the manu
scripts from which I have extracted La Theorie des
Peines, were written in 1775. Those which have
supplied me with La Theorie des Recompenses, are
a little later : they were not thrown aside as use
less, but laid aside as rough hewn materials, which
might at a future day be polished, and form part
of a general system of legislation or as studies
which the author had made for his own use.
" These manuscripts, though much more volu
minous than the work I have presented to the
public, are very incomplete. They offered to me
often different essays upon the same subject, of
which it was necessary to take the substance and
unite them into one. In some chapters I had
ADVERTISEMENT. 5
nothing but marginal notes to direct me. For the
fourth book of La Thcoriedes Peines, I was obliged
to collect and prepare a variety of fragments.
The discussion upon the punishment of death was
unfinished. At one time, the author intended to
treat of this subject anew, but this intention has
not been carried into effect. He had prepared
nothing upon transportation nothing upon Peni
tentiaries. The idea of the Panopticon was as
yet unformed. I have derived the foundations of
these two important chapters from a work of Mr
Bentham s, since published (Letters to Lord
Pelham, &c. &c.) I have taken all that suited my
general method of treating the subject, by sepa
rating it from all controversy.
" After these explanations, it will not be matter
of surprise, if the facts and allusions do not always
accord with the date of the original manuscripts.
I have freely used the rights of an Editor accord
ing to the nature of the text and the occasion, I
have translated, commented, abridged, or supplied,
but it need hardly be repeated, after what was
said in the preliminary discourse to the former
publication, that this co-operation on my part has
had referrence to the details only, and ought not
to diminish the confidence of the readers ; it is not
my work that I present to them, it is, as faithfully
as the nature of things will permit, the work of
Mr Bentham.
G ADVERTISEMENT.
" It has been said, that these additions, these
changes, should bear some distinctive mark ; but
though this species of fidelity is desirable, it is
impossible. It is only necessary to imagine what
is the labour of finishing a first sketch, of com
pleting unfinished and unreviewed manuscripts,
sometimes consisting of fragments and simple
notes, in order to comprehend, that it required a
continued freedom, a species of imperceptible infu
sion, if I may so speak, which it is scarcely possi
ble for the individual himself to remember. This
is, however, of no importance. It may be believed
that the author has not found his ideas disfigured
or falsified, since he has continued to entrust me
with his papers.
" I must however declare, that he has altogether
refused to share my labour, and that he will not,
in any manner, be responsible for it. As he has
never been satisfied with a first attempt, and has
never published anything which he has not written
at least twice over, he has foreseen that the revi
sion of so old an essay, would lead him too far
away from, and be incompatible with, his present
engagements. In this manner he has justified his
refusal ; but he has authorised me to add, that
any change which he might make, would bear only
upon the form; as respects the principles, his
opinions have not changed : on the contrary, time
and reflection have given them additional strength.
ADVERTISEMENT. 7
"That Mr Bentham, who is too particular about
his productions, should not deem these worthy of
the public notice, will not astonish those who know
all that he requires of himself, and the ideas which
he has formed for himself of a complete work.
" A perfect book would be that which should
render useless all which had been written in time
past, or that could be written in future time, upon
the same subject. With respect to the second
condition, it is not possible to decide when it is
accomplished, without pretending to measure the
power of the human mind ; with respect to the
first, we can more easily decide by a comparison
with the works which have gone before.
" This comparison has supported me against a
just distrust of my own powers. After the author
had refused me all assistance, and had expressed
his doubts upon the merit of his own work, I
was led to reperuse and reconsider the most cele
brated works upon this subject, and even those
which had been less distinguished, and then I
could hesitate no longer.
" I was tempted, at one time, to collect every
thing dispersed through L Esprit des Lois upon the
subject of Rewards and Punishments. This col
lection would have been contained in ten or a dozen
pages. By thus collecting the whole together, it
would have been possible to judge of the correct
ness of that expression of D Alembert, so often
8 ADVERTISEMENT.
repeated in France, that Montesquieu had said all,
that he had abridged all, because he had seen all.
Among a multitude of vague and undefined
thoughts upon these subjects, of which some
are erroneous, there are certainly some which are
judicious and profound, as in everything we possess
of this illustrious writer. But he has not developed
the Rationale of Rewards and Punishments,
indeed, this was not his design, and nothing would
be more unjust than to criticise him for not having
done what he did not intend to perform.
" Beccaria has done more : he first examined
the efficacy of punishments, by considering their
effect upon the human heart ; by calculating the
force of the motives by which individuals are
impelled to the commission of crimes ; and of
those opposite motives which the law ought to
present. This species of analytical merit was,
however, less the cause of his great success, than
the courage with which he attacked established
errors, and that eloquent humanity which spreads
so lively an interest over his work ; but after this,
I scruple not to say, that he is destitute of method,
that he is not directed by any general principle, that
he only glances at the most important questions,
that he carefully shuns all practical discussions in
which it would have been evident, that he was
unacquainted with the science of Jurisprudence.
He announces two distinct objects : crimes and
ADVERTISEMENT.
punishments; he adds to these, occasionally,
Procedure ; and these three vast subjects with
difficulty furnish out matter for one little
volume.
" After Montesquieu and Beccaria, we may
leave in peace a whole library of books, more or
less valuable, but which are not distinguished by
any great character of originality ; not but that
we should find in them correct and judicious views,
interesting facts, valuable criticisms upon laws,
many of which no longer exist, and to the disap
pearance of which these works have contributed.
I intend not here to enter in detail either upon
their criticism or eulogium. It is enough for me
to observe, that none have laid down the Rationale
of Rewards and Punishments, or could be
employed as a general guide.
" In the volumes formerly published, the Ratio
nale of Punishment was only sketched out a
general map only was given of the department of
Criminal Law, of which this work exhibits the
topography.
"To prevent frequent reference, and to render
this work complete in itself, I have borrowed some
chapters from the preceding work, making con
siderable additions to them, and giving them a
different form.
"At the risk, however, of inspiring my readers
with a prejudice unfavourable to my work, I must
10 ADVERTISEMENT.
acknowledge that its object, how important soever
it may be in relation to its consequences, is any
thing but interesting in its nature. I have been
sensible of this during the progress of my labour,
and I have not completed it without having often
to conquer myself. A philosophical interest alone
must suffice ; the descriptions of punishments,
and the examination of punishments, which follow
each other without cessation in a didactic order, do
not allow of a variety of style, do not present any
pictures upon which the imagination can repose
with pleasure.
" Felices ditant hsec ornamenta libellos,
Non est conveniens luctibus ille color.
" Happily, the subject of Rewards, by its
novelty, and by the ideas of virtues, talents, and
services, which it causes to pass in review, will
conduct the readers by more agreeable routes.
The Tartarus and Elysium of legislation, so to
speak, are here disclosed ; but in entering into this
Tartarus, it is only to lighten its torments, and
we are careful not to engrave upon its portal the
terrible inscription of the poet,
" Lasciate speranza, voi ch entrate. "
ADVERTISEMENT. 11
In preparing the Rationale of Punisliment* for
its appearance before the English public, the
Editor has taken the second volume, published
by M. Dumont, as the ground-work of his labours,
but having availed himself, wherever he could,
of the original manuscripts, his will in many
instances not be found a literal translation of
M. Dumont s work.
EDITOR.
* The Rationale of Reward was published in 1825.
]0 ADVERTISEMENT.
acknowledge that its object, how important soever
it may be in relation to its consequences, is any
thing out interesting in its nature. I have been
sensible of this during the progress of my labour,
and I have not completed it without having often
to conquer myself. A philosophical interest alone
must suffice ; the descriptions of punishments,
and the examination of punishments, which follow
each other without cessation in a didactic order, do
not allow of a variety of style, do not present any
pictures upon which the imagination can repose
with pleasure.
" Felices ditant hsec ornamenta libellos,
Non est conveniens luctibus ille color.
" Happily, the subject of Rewards, by its
novelty, and by the ideas of virtues, talents, and
services, which it causes to pass in review, will
conduct the readers by more agreeable routes.
The Tartarus and Elysium of legislation, so to
speak, are here disclosed ; but in entering into this
Tartarus, it is only to lighten its torments, and
we are careful not to engrave upon its portal the
terrible inscription of the poet,
" Lasciate spcranza, voi ch entrate. "
ADVERTISEMENT. 11
In preparing the Rationale of Punisliment* for
its appearance before the English public, the
Editor has taken the second volume, published
by M. Dumont, as the ground-work of his labours,
but having availed himself, wherever he could,
of the original manuscripts, his will in many
instances not be found a literal translation of
M. Dumont s work.
EDITOR.
* The Rationale of Reward was published in 1825.
CONTENTS.
BOOK I.
GENERAL PRINCIPLES.
Page
CHAP. 1. Definitions and Distinctions . . V> 1
2. Classification . . f 17
3. Of the Ends of Punishment . , , . 19
4. Cases unmeet for Punishment ^ . 23
5. Expence of Punishment . .. . . .27
6. Measure of Punishment .. ->., 32
7. Of the Properties to be given to a lot of
Punishment . . . .... . 42
8. Of Analogy between Crimes and Punishments 56
9. Of Retaliation . . 64
10. Of Popularity .. . . . . .69
BOOK II.
OF CORPORAL PUNISHMENTS.
CHAP. 1. Simple Afflictive Punishments . ; . . 76
2. Complex Afflictive Punishments . . 86
3. Of Restrictive Punishments Territorial Con
finement ....
4. Imprisonment . <**
5. Imprisonment Fees ^ .
6. Imprisonment examined ....
7. General Scheme of Imprisonment . .
XIV CONTENTS.
Page
CHAP. 8. Of other Species of Territorial Confinement
Quasi Imprisonment Relegation Banish
ment . . .136
9. Of Simply Restrictive Punishment . .149
10. Of Active Laborious Punishments . . 155
11. Capital Punishment . . igg
12. Capital Punishment examined 177
BOOK III.
OF PRIVATIVE PUNISHMENTS, OR FORFEITURES.
CHAP. 1. Privative Punishments analyzed . . 198
2. Of Punishments belonging to the Moral
Sanction . . 205
3. Forfeiture of Reputation . 222
4. Of Pecuniary Forfeiture . 252
5. Forfeiture of Condition . 260
6. Forfeiture of the Protection of the Law 275
BOOK IV.
OF MIS-SEATED PUNISHMENT.
Of the Proper Seat of Punishment . . 277
SECT. I. Naturally extravasating Punishment Rules
concerning . 282
2. Punishment apparently, but not really mis-
seated . ... 286
3. Mis-seated Punishment varieties of . . 287
4. Vicarious Punishment . 039
5. Transitive Punishment . . 293
6. Disadvantages of this mode of Punishment . 300
7. Collective Punishment 302
CONTENTS. XV
Page
CHAP. 8. Random Punishment . . . 307
9. Of the Causes of the frequency of Mis-seated
Punishment . 322
BOOK V.
OF COMPLEX PUNISHMENTS.
CHAP. 1. Inconveniences of Complex Punishments . 325
2. Of Transportation . . . 327
3. Panopticon Penitentiary . . . 351
4. Felony . . . .369
5. Preemunire . . . 395
6. Outlawry . . -. 397
7. Excommunication . . . 403
BOOK VI.
MISCELLANEOUS TOPICS.
CHAP. 1. Choice of Punishments Latitude to be
allowed to the Judges . . .411
2. Of Sudsidiary Punishments . . 414
3. Of Surety for good Conduct . . . 421
4. Defeazance of Punishment . 425
RATIONALE OF PUNISHMENT.
BOOK I.
GENERAL PRINCIPLES.
CHAPTER I.
DEFINITIONS AND DISTINCTIONS.
To afford a clear apprehension of the subject of
the following work, which subject is Punishment,
it is necessary that what punishment is, and what
punishment is tiot, should be clearly understood.
For this purpose it will be proper to distinguish it
from those objects with which it is in danger of
being confounded, and also to point out the diffe
rent shapes which it may assume.
Punishment, whatever shape it may assume, is
an evil. The matter of evil, therefore, is the sort of
matter here in question : the matter of evil in
almost all the shapes of which it is susceptible.
In considering this matter, two objects, constant
accompaniments one to the other, will require to
be distinguished; viz. 1. The act by which the
evil is considered as being produced ; and, 2. What
2 B.I. CH.i. DEFINITIONS AND DISTINCTIONS.
is considered as being the result of that same act,
the evil itself which is thus produced.
The English language affords but one single
worded appellative in common use for designating
both these objects ; viz. Punishment.*
Punishment may be defined an evil resulting
to an individual from the direct intention of ano
ther, on account of some act that appears to have
been done, or omitted. The propriety of this defi
nition will appear, and its use be manifested, by
taking it to pieces, and examining its several con
stituent parts.
Punishment then is an evil that is, a physical
evil ; either a pain, or a loss of pleasure, or else of
that situation or condition of the party affected,
which is the immediate cause of such pain or loss
of pleasure. It is an evil resulting from the direct
intention of another. It is not punishment, if it
be obliquely intentional on the part of the person
from whose agency it results, but an evil of some
* In the French, there exists for the designation of the act
one name, viz. punition acte de punition ; and for the designa
tion of the evil, the result or produce of that act, another name,
viz. peine.
But though exempt from the ambiguity by which, as above,
the English language is deteriorated, the French labours under
another. By the word peine, the result is indeed secured against
being confounded with the act that caused it. But, on the other
hand, the use of this word is not confined to the case in which
the object designated by it is the result of an act emanating
from the will of a sentient being ; it is at least as frequently em
ployed to designate the object itself, without regard to the cause
by which it has been produced.
Besides being too broad in one direction, the import of it is
too narrow in another. It is synonymous to, and not more than
coextensive with, douleur : it fails of including that modification
of evil which is of the purely negative cast, consisting of the
absence, certain or more or less probable, of this or that modifi
cation of pleasure.
B.I. C1I.I. DEFINITIONS AND DISTINCTIONS. 3
other nature, but which, however, is not in all
cases distinguished by a specific name.
It is an evil resulting to a person from the direct
intention of another, on account of some act that
has been done or omitted. An evil resulting to an
individual, although it be from the direct intention
of another, if it be not on account of some act that
has been done or omitted, is not a punishment.
If, out of wantonness, for the sake of sport, or out
of ill-will, resulting from an antipathy you enter
tain against a man s person, without having any
particular act of his to ground it upon, you do him
a mischief, the evil produced in this case is what
nobody would understand to come under the name
of punishment.
But so it be on account of some act that has
been done, it matters not by whom the act was
done. The most common case is for the act to
have been done by the same person by whom the
evil is suffered. But the evil may light upon a
different person, and still bear the name of punish
ment. In such case it may be styled punishment
in alienam personam, in contradistinction to the
more common case in which it may be styled
punishment in propriam personam. Whether the act
be ultimately or only mediately intentional, it may
consistently enough with common usage bear the
name of punishment. Though according as it was
in the one or the other way that the intention hap
pened to regard it, the act will assume a different
name, as we shall have occasion to mention pre
sently.
It must be on account of some act that at least
appears to have been done ; but whether such an
act as appears to have been done, or any act,
actually was done, is not material.
By the denomination thus given to the act, by
4 B.I.CH.I. DEFINITIONS AND DISTINCTIONS.
the word punishment, taken by itself, no limitation
is put to the description of the person of the agent ;
but on the occasion of the present work, this person
is all along considered as a person invested for this
purpose with the authority of the state ; a legislator
appointing the species of evil to be inflicted in a
species of case ; or a judge appointing the indivi
dual lot of evil to be inflicted in this or that in
dividual case.
Vengeance, antipathy, amendment, disablement,
determent, self-defence, self-preservation, safe
custody, restraint, compulsion, torture, compensa
tion in the sense in which it means a particular
mode of satisfaction for injury or damage burthen
in any such phrase as that of imposition of a bur
then, and taxation: by all these several words
ideas are presented which will require in each
instance to be compared, and, in most instances,
to be distinguished from the ideas presented by
the word punishment.
Take whatever portion of the matter of evil is
upon the carpet, whether the term punishment
shall or shall not with propriety be applied, de
pends upon the position in which the actual result
stands with reference to the time in which the
will or intention of the agent acts.
Intentional or unintentional : if intentional,
directly or indirectly, or, to use another word,
collaterally intentional ; if directly, ultimately, or
but mediately intentional ; such are the modifica
tions which the matter of evil may be considered
as receiving, when considered in the character of
an object to which the will or intention turns
itself.
In some cases, the man in power, or some
person or persons, having, as he supposes, re
ceived at the hands of some person or other,
B.I. CII.I. DEFINITION S AND DISTINCTIONS. 5
evil in some shape or other, the object which he
has in view, in the infliction of the evil in ques
tion, is an enjoyment of a certain kind, which he
derives, or expects to derive, from the contempla
tion of the evil thus sustained. In this case, the
act in question is termed an act of vengeance.
So far as this, and this alone, is his object, this
evil thus produced is not only directly but ulti
mately intentional.
Whether in the character of a sole object, a
result of this nature be a fit object for the man in
power to propose to himself, is indeed a very im
portant question, but one which has no place
here : punishment, by being misapplied, is not
the less punishment.
Laying out of the above case the supposed
antecedent evil, you have no longer an act of ven
geance, but an act performed for the mere gratifi
cation of antipathy. But by the supposition
having for its author or agent the legislator or the
Judge, it is still not the less an act of punishment.
Of the cases in which the act productive of the
evil, intentionally produced by the hand of power,
is termed an act of punishment, the most common
class is that which is composed of those in which,
on the part of the agent, the evil thus produced is,
though intentional, and even directly intentional,
yet not ultimately, but only mediately intentional.
In this case the ultimately intentional object
the object in relation to which the act of punish
ment is intended to minister in the character of
a means to an end may be either an act of the
negative or the positive * cast.
* Note. To him who would understand what he hears or
what he says, positive and negative are adjuncts; the use of
which is not more necessary in electricity and galvanism than
in law, and especially in penal law.
C B.I. CH.I. DEFINITIONS AND DISTINCTIONS.
When the act to which the punishment is an
nexed is of the positive cast, the ultimately inten
tional object aimed at by the act of punishment
is of the opposite cast : and so when the offence
is negative, the result, the production of which is
aimed at by the punishment, is positive.
If the offence be of the positive cast, then come
the following string of appellatives, expressive of
the results, the production of which is in different
ways aimed at : viz. 1 . Amendment or reforma
tion : 2. Disablement: 3. Determent: 4. Self-
defence : 5. Self-preservation : 6. Safe custody :
and 7. Restraint.
If the offence be of the negative cast, then comes
another string of appellatives, expressive, as above,
of the results aimed at: viz. 1. Compulsion or
constraint: 2. Torture: 3. Compensation, in the
sense in which it is equivalent to satisfaction, ren
dered in consideration of injury resulting from an
offence, or in consideration of damage produced
without intentional injury: 4. Taxation.
Whether the result aimed at be of the negative
or positive cast, the terms, coercion, obligation,
burthen, or the phrase imposition of a burthen, are
competent to the designation of it.
Amendment, or reformation, and disablement, are
words expressive of the result aimed at, in so far
as the conduct of the supposed delinquent is
concerned. In the case of amendment or reforma
tion, the obnoxious act is regarded as beins: of
o o
such a nature, that by a single instance of its
being committed, such a degree of disorder in the
moral constitution is indicated, as requires a gene
ral change to remove it, and bring the patient to
a state of ordinary purity.
Few if any offences of the negative class being
to be found which exhibit any such degree of
W.I. CH.I. DEFINITIONS AND DISTINCTIONS. 7
malignity, the use of the terms amendment and
reformation is nearly confined to the case when
the obnoxious act, the prevention of which is the
ultimate end of the punishment, is of the positive
kind.
Disablement is a term for which, with reference
to an act of the negative kind, a place is hardly to
be found. Doing nothing is a sort of offence to
which every man is so competent, that all endea
vours on the part of Government to disable a man
from committing it may be set at defiance.
Determent is a result equally applicable to the
case either of a positive or negative offence. It is
moreover equally applicable to the situation of the
already punished delinquent, and that of other
persons at large ; nor does it involve, on the part
of the punished delinquent, the supposition of any
such general disorder as is implied by the words
amendment or reformation.
When the ultimately intentional result is amend
ment or reformation, it is by the impression made
by the action of the evil on the will of the offender
that, in so far as it is produced, the result is con
sidered as being produced. In this case the act of
punishment is also termed an act of correction.
When the ultimately intentional result is dis
ablement, it is by depriving the offender of the
power of committing obnoxious acts of the like
description, that, in so far as it is produced, the
result is considered as being produced. In this
case, the course taken to produce the result may
either be such the nature of which is to produce
it only for a time, as is done by temporary impri
sonment, confinement, or deportation ; or for ever,
as would in some cases be done by mutilation.
In so far as by the act of punishment exercised
on the delinquent, other persons at large are con-
8 B.I. CH.I. DEFINITIONS AND DISTINCTIONS..
sidered as deterred from the commission of acts of
the like obnoxious description, and the act of
punishment is in consequence considered as en
dued with the quality of determent. It is by the
impression made on the will of those persons, an
impression made in this case not by the act itself,
but by the idea of it, accompanied with the even
tual expectation of a similar evil, as about to be
eventually produced in their own instances, that
the ultimately intentional result is considered as
produced : and in this case it is also said to be
produced by the example, or by the force of ex
ample.
Between self-defence and punishment, the rela
tion is of this sort, viz. that to the same act
which ministers to the one of those purposes, it
may happen to minister to the other. This coin
cidence may have place in either of two ways : an
act which has self-defence for its direct object and
result, may have punishment for its collateral
result ; or an act which has punishment for its
direct object and result, may have self-defence
for its collateral result.
In repelling a personal assault, it may happen
to an individual, intentionally or unintentionally,
to inflict on the assailant, a suffering by any
amount greater than that of any which, by the
assault, was inflicted on himself: if unintention
ally, self-defence was not only the sole ultimately
intentional, but the sole intentional result : but
the suffering of the assailant, though not the col
laterally intentional, was not in effect less truly
the collateral result.
On the other hand, in inflicting punishment on
a delinquent, it may happen to the man in autho
rity to be exercising on his own behalf an act of
self-defence: in regard to all offences, such as
B.I. CH.I. DEFINITIONS AND DISTINCTIONS. 9
rebellion and treason, which have for their object or
their effect the subversion of the government, or
the weakening of its powers. But it is only in
reference to such offences that an act of punish
ment can, with reference to the constituted autho
rities, be with propriety called an act of self-
defence.
But if in lieu of the constituted authorities, the
members of the community at large be considered
as the persons by whom the punishment is in
flicted ; then is all punishment an act of self-
defence, in relation to the particular species of evil
with which the offence thus punished is pregnant :
an act tending to defend the community against
offences of the sort in question, with their attend
ant evils, viz. by means of reformation, disable
ment, and determent, one or more of them as
above.
In the signification of the word self-defence, it is
implied that the evil against which the party is
endeavouring to guard himself has for its cause an
act done by some sentient being, with the intention
of producing that same evil.
The word self-preservation, is alike applicable
whatsoever be the source or quarter from which
the evil is considered as about to come. In so far,
therefore, as the act of punishment is with pro
priety capable of being termed an act of self-
defence, it is, with the same propriety, capable of
being termed an act of self-preservation.
Between safe custody and punishment, the
relation is of this sort : To one and the same
operation or factitious state of things it may
happen to be productive of both of these effects.
But in the instance of the same individual, it is
only to a limited degree that there can be a
10 B.I. CH.I. DEFINITIONS AND DISTINCTIONS.
sufficient reason for making provision for both at
the same time.
To a considerable extent imprisonment with
propriety may be, and everywhere is applied,
under the name and to the purpose of punishment.
In this case, safe custody is in part the same thing
with the intended punishment itself; in part a
concomitant necessary to the existence and con
tinuance of whatsoever inflictions it may be
deemed proper to add to those which are insepa
rable from the safe custody itself.
But in another case, imprisonment, or an
infliction of the same name at least as that
which is employed as above, for the purpose of
punishment, is to a great extent administered
ultimately for the purpose of eventual forth-
comingness, and mediately for the purpose of
safe custody, though no such thing as punishment
is, or at least ought to be, intended, because no
ground for punishment has as yet been, and per
haps never may be, established.
Between restraint and punishment the relation
is of this sort. In some shape or other, restraint
is the directly intentional result of every prohi
bitive law. The evil, whatever it be that
constitutes an inseparable accompaniment of the
state thus denominated, is a collaterally inten
tional result of that same law. The evil of the
restraint may be very moderate, but still by every
general prohibitive law; evil in some shape or
other, in some quantity or other, must come.
At the same time, restraint is, in a great variety
of shapes, capable of being employed in the
character of a punishment. As a punishment,
restraint is not incapable of being employed for the
purpose of securing submission to restraint. But
13.1. CH.I. DEFINITIONS AND DISTINCTIONS. 11
in this case, the coincidence is but verbal, and
arises from the generality of the word restraint.
In the character of a punishment we cannot em
ploy the restraint collaterally resulting from the
negative act, the production of which is the object
of the prohibition in the character of the eventual
punishment, to secure obedience to that same
prohibitive law. To prevent a man from stealing,
a law threatening to prevent him from stealing,
would be but an indifferent resource. To secure,
by means of eventual punishment, restraint in
this shape, you must employ restraint in some
other shape ; for example, the restraint attached to
imprisonment.
Between compulsion and punishment, the re
lation is of this sort. In the case of compulsion,
as in the case of restraint, the act in question is
the act which is regarded as the efficient cause of
the evil, the prevention of which is the ultimate
object of the act of punishment. What restraint
is in the case when the act in question is of the
positive cast, compulsion is in the case when the
act is of the negative cast.
Between torture and punishment, the relation is
of this sort. The term torture is employed, and
perhaps with nearly equal frequency, in two
different senses. In its most extended sense it is
employed to designate pain, especially pain of
body, when considered as being intense in its
degree, and this without reference to the cause by
which it is produced.
In its more restricted sense, being that in which it
is most apt to be employed, when considered as the
result of law, it is employed to signify pain of body
in its degree intense as above, employed in due
course of law, or, at any rate, by the handof power,
in the character of an instrument of compulsion.
12 B.I. Ctl.I. DEFINITIONS AND DISTINCTIONS.
But the account given of it when employed in
this sense wants much, as yet, of being complete.
The compulsion, or constraint, may be produced
by the mere apprehension of the punishment
which is denounced.
By this circumstance, torture stands distin
guished not only from compulsion itself, but from
any lot of punishment considered as applied to the
purpose of compulsion in the ordinary mode.
The notion of torture is not included in a
punishment attached to an act of disobedience, of
which no remission is allowed ; but suppose the
same lot of pain attached to the same offence,
with power to remit any part of it, in case of and
immediately upon -compliance with the requisition
of the law; and here the punishment comes under
the notion and denomination of torture.
Between compensation, or satisfaction and pu
nishment, the relation is of this sort : in all cases,
if compensation be the end in view, so far as con
cerns pecuniary compensation, by whatsoever is
done for the purpose of compensation, the effect of
pecuniary punishment is produced likewise. More
suffering, however, will in general be produced by
what is taken for the purpose of compensation than
if the same amount were taken for the purpose of
punishment ; it will be accompanied by the regret
produced by the idea of the advantage not only
reaped by an adversary, but reaped at one own s
expense.
On the other hand, by the contemplation of the
suffering inflicted by punishment on the delin
quents, good in the shape of compensation, or say
vindictive satisfaction, is administered to the party
injured.
Between taxation and punishment of the pecu-
B.I. CII.I. DEFINITIONS AND DISTINCTIONS. 13
niary kind, for it is only in this form that they can
be compared, the relation is of this sort; they both
consist in the application of compulsion to the
extracting out of the pocket in question a certain
sum ; the difference between them consists in the
end in view. In the case of taxation, the object
is the obtainment of a certain sum ; in the case of
punishment, the object is the prevention of the
obnoxious act, to the commission of which the
obligation of paying the money is attached in the
character of a punishment. In the case of tax
ation, the wish of the legislator is, that the money
may be paid ; and, consequently, if it be to the
performance of a certain act that the obligation of
paying the money is annexed, his wish is that the
act may be performed.
As in the two cases the result intended is oppo
site, the actual results are accordingly incompati
ble, in so far as either result is obtained, the other
is missed. Whether the effect of any given law
shall be taxation, or effectual prohibition, depends
in the instance of each individual upon the value,
which, in the case in question, he is called upon
to pay, compared with the value in his estimation
of the advantage which stands annexed to the ex
ercise of the act ; if the advantage appear the
greater, he pays the money and exercises the act ;
if the value of the money to be eventually paid
appear the greater, he obeys the prohibitory law,
and abstains from the performance of the act.
When the face assumed by any law is that of a
prohibition, if the penalty be nothing but pecu
niary and the amount is fixed, while the profits of
the offence are variable, the probability is that in
many instances the penalty even if levied, which
could not be without detection, prosecution, and
conviction, would but operate as a taxed licence.
14 B.I. CH.I. DEFINITIONS AND DISTINCTIONS.
This circumstance is so obvious, that one would
have thought it could not have been overlooked ;
had it, however, been observed with any tolerable
steadiness in England, the law of that country
would wear a face widely different from that
which it wears at present.
In relation to all these several results or conco
mitants* of punishment, one observation useful to
* The distinctions between these several objects maybe illus
trated by an example.
In 1769, a jury gave a verdict of 4,OOOZ. damages against the
Earl of Halifax, for the wrongful imprisonment of John Wilkes,
Esq. on suspicion of being the author of a state libel. It may
be inquired, what sort of act did the jury perform, when by
giving this verdict they appointed the sum in question to be paid
by the one person to the other ?
It was intended to be an act of punishment. If any juryman
being angry with Lord Halifax also intended to produce pain in
him, on account of the pleasure he took in thinking of that
pain ; in the case of such juryman it was an act of vengeance-
being done, however, on account of an act that had been
done, viz. the imprisonment of Mr Wilkes, it was not an act of
antipathy.
If any juryman did it with a view of deterring Lord Halifax
or any one who might occupy that nobleman s place in future
from doing acts of the like kind, and of preventing the mischief
apprehended from such acts, it was in him an act for amend
ment and determent. It could not, however, operate for the
purpose of disablement, the paying of a sum of money, havino-
no tendency to d.sable Lord Halifax, or those holding the same
otnce, from imprisoning others who might become the objects of
their dislike.
It was not an act of immediate self-defence, for self-defence
implies attack, that is, implies that there is some person who is
ictually using his endeavours to do mischief to the party defend
ing himself. If, however, any juryman thinking himself in dan
ger of suffering in the like, or any other manner from Lord H
and persons liable to act as he did, joined in the verdict with
the view of preserving himself from such suffering, to wit bv
means of the restraint which the fear of similar punishment
naight be expected to impose on Lord Halifax and such other
persons, on the part of such juryman it was an act of self-pre
servation.
B.I. CII.T. DEFINITIONS AND DISTINCTIONS. 15
be borne in mind, that it may operate as a preser
vative against much error, is that it is but in very
few, if any of these instances, that from the name
by which the object is here designated, any true
judgment can be formed on any such question as
whether and how far the object is a fit object of
pursuit or aim in the character of an end.
Take any one of them for example, if taken
by itself that object be of the nature of good, yet
in the first place, that good may be in any degree
minute ; in the next place, to the quantity of evil
with which it may happen to it to be followed,
there are no limits : and thus it is that false must
be that proposition, which without leaving room
for exceptions, should pronounce the attainment
of that object to be universally an end fit to be
aimed at, whether through the intervention of
punishment, or any other means ; and conversely.
Of the distinctions here pointed out between
punishment and the several objects that are of kin
to it, five distinguishable practical uses may be
made.
1 . They may serve as a memento to the legisla
tor, to see on every occasion that for the several
objects which may have place and present a
The payment of the fine imposed could contribute nothing to
the purposes of safe custody or physical restraint, neither was it
an act of compulsion, for it was not designed as a means of com
pelling him to do anything.
It was not an act of torture ; the penalty, if paid, was paid
instantaneously; the act of paying ceasing of itself, and not
being capable of being protracted so as to be made to cease only
at a future given instant.
If any juryman did it with the view of making Mr Wilkes
amends for the pain he had suffered by the supposed injury in
question, in such juryman it was an act of compensation ; and
if the juryman who intended to make compensation to Mr
Wilkes also thought that it was right to tax Lord Halifax to the
amount of the compensation proper to be given to Mr Wilkes,
it was an act of taxation.
16 B.I.CH.I. DEFINITIONS AND DISTINCTIONS.
demand for legislative provision ; due and ade
quate provision is accordingly made.
2. To preserve him from the delusion which
would have place, wheresoever it happens that by
one and the same lot o evil, due and adequate
provision may be made for two or more of these
purposes, if by the difference of their respective
denominations, he were led to give birth to two
or more lots of evil for the purpose of effecting the
good, for the effectuation of which one of them
would suffice.
3. That in each instance, in comparing the end
he has in view with the means which he proposes
to employ for the attainment of it, the view he
takes of such proposed means may be sufficiently
clear, correct, and complete, to enable him to form
a correct judgment of the mode and degree in
which they promise to be conducive to the attain
ment of the end.
4. That he may be upon his guard against that
sort of rhetorical artifice which operates by sub
stituting for the proper name of the object or result
in question, according to the purpose in view, the
name of some other object or result, the name of
which is either more or less popular than the pro
per one.
5. That while in pursuit of any one of these
objects, in the character of an end, he employs
such means as to his conception appear conducive
to that end, he may be correctly and completely
aware of any tendency which such arrangements
may have to be conducive or obstructive, with
reference to any other of these same ends.
17
CHAPTER II.
CLASSIFICATION.
IN a former work it has been shewn* that
offences against individuals may be ranged under
four principal heads ; offences against the person,
property, reputation, and condition. The same divi
sion may be applied to punishments ; an individual
can only be punished by affecting his person, his
property, his reputation, or his condition.
The circumstance which renders these two
classifications similar is this punishments and
offences are both evils caused by the free agency
of man. In as many points as we are liable to be
injured by the hand of an offender, in so many
points is the offender himself exposed to the sword
of justice. The difference between punishments
and offences is not then in their nature, which is,
or may be, the same ; but in the legality of the
one, and the illegality of the other, offences are
prohibited, punishments are instituted by the
laws./ .Their effects also are diametrically oppo
site. An offence produces an evil both of the first
and second order ; -\ it causes suffering in an indi-
* Introduction to Principles of Morals and Legislation, vol. ii,
page 63.
t See Principles of Morals and Legislation, ch. 12, vol. i,
page 254, Of the Consequences of a Mischievous Act.
" The mischief of an offence may frequently be distinguished, as
it were, into two shares or parcels ; the one containing what
may be called the primary ; the other what may be called the
secondary. That share may be termed primary which is sus
tained by an assignable individual, or a multitude of assignable
individuals. That share may be termed secondary, which, taking
C
18 U.I. CIl.lI. CLASSIFICATION.
vidual which he was unable to avoid, and it
spreads an alarm more or less general. A punish
ment produces an evil of thejirst order, and a good
of the second order. It inflicts suffering upon an
individual who has incurred it voluntarily, and in
its secondary effects it produces only good, it inti
midates the ill-disposed, it re-assures the innocent,
and becomes the safeguard of society.
Those punishments which immediately affect
the person in its active or passive powers, consti
tute the class of corporal punishments, / they may
be divided into the following different kinds.
1. Simply afflictive punishments,
2. Complexly afflictive punishments.
3. Restrictive punishments.
4. Active or laborious punishments.
5. Capital punishments.
Punishments which affect property, reputation,
or condition, possess this quality in common, they
deprive the individual of some advantage which he
before enjoyed ; such are privative punishments,
losses, and forfeitures. The punishments of this
class are very various, they extend to every pos
sible kind of possession.
Hence we perceive that all punishments may
be reduced to two classes.
1. Corporal punishments.
2. Privative punishments, or punishments by
loss or forfeiture.
its origin from the former, extends itself rather over the whole
community, or over some other multitude of unassignable indi
viduals."
For the full development of this subject, reference may be
made to the chapter indicated.
19
CHAPTER III.
OF THE ENDS OF PUNISHMENT.
WHEN any act has been committed which is
followed, or threatens to be followed, by such
effects as a provident legislator would be anxious
to prevent, two wishes naturally and immediately
suggest themselves to his mind : first, to obviate
the danger of the like mischief in future : secondly,
to compensate the mischief that has already been
done.
The mischief likely to ensue from acts of the
like kind may arise from either of two sources,
either the conduct of the party himself who has
been the author of the mischief already done, or
the conduct of such other persons as may have
adequate motives and sufficient opportunities to do
the like.
Hence the prevention of offences divides itself
into two branches : Particular prevention, which
applies to the delinquent himself; and general
prevention, which is applicable to all the members
of the community without exception.
Pain and pleasure are the great springs of
human action. When a man perceives or sup
poses pain to be the consequence of an act, he is
acted upon in such a manner as tends, with a
certain force, to withdraw him, as it were, from
the commission of that act. If the apparent mag
nitude, or rather value * of that pain be greater
* I say value, in order to include the circumstances of inten
sity, proximity, certainty, and duration ; which magnitude, pro
perly speaking, does not. This may serve to obviate the
objections made by Locke (book II, ch. 21) against the propo
sition, that man is determined by the greater apparent good.
20 B.I. CII.III. OF THE ENDS OF PUNISHMENT.
than the apparent magnitude or value of the plea
sure or good he expects to be the consequence of
the act, he will be absolutely prevented from per
forming it. The mischief which would have
ensued from the act, if performed, will also by
that means be prevented.
With respect to a given individual, the recur
rence of an offence may be provided against in
three ways:
1. By taking from him the physical power of
offending.
2. By taking away the desire of offending.
3. By making him afraid of offending.
In the first case, the individual can no more
commit the offence ; in the second, he no longer
desires to commit it ; in the third, he may still
wish to commit it, but he no longer dares to do it.
In the first case, there is a physical incapacity ;
in the second, a moral reformation ; in the third,
there is intimidation or terror of the law.
General prevention is effected by the denuncia
tion of punishment, and by its application, which,
according to the common expression, serves for an
example. The punishment suffered by the offender
presents to every one an example of what he him
self will have to suffer if he is guilty of the same
offence.
General prevention ought to be the chief end of
punishment, as it is its real justification. If we
could consider an offence which has been com
mitted as an isolated fact, the like of which would
never recur, punishment would be useless. It
would be only adding one evil to another. But
when we consider that an unpunished crime leaves
the path of crime open not only to the same delin
quent, but also to all those who may have the
same motives and opportunities for entering upon
B.I. CH.III. OF THE ENDS OF PUNISHMENT. 21
it, we perceive that the punishment inflicted on
the individual becomes a source of security to
all. That punishment, which, considered in
itself, appeared base and repugnant to all gene
rous sentiments, is elevated to the first rank of
benefits, when it is regarded not as an act of
wrath or of vengeance against a guilty or unfortu
nate individual who has given way to mischievous
inclinations, but as an indispensable sacrifice to
the common safety.
With respect to any particular delinquent, we
have seen that punishment has three objects,
incapacitation, reformation, and intimidation. If
the crime he has committed is of a kind calculated
to inspire great alarm, as manifesting a very mis
chievous disposition, it becomes necessary to take
from him the power of committing it again. But
if the crime, being less dangerous, only justifies a
transient punishment, and it is possible for the
delinquent to return to society, it is proper that
the punishment should possess qualities calculated
to reform or to intimidate him.
After having provided for the prevention of
future crimes, reparation still remains to be
made, as far as possible, for those which are
passed, by bestowing a compensation on the party
injured ; that is to say, bestowing a good equal to
the evil suffered.
This compensation, founded upon reasons which
have been elsewhere developed,* does not at first
view appear to belong to the subject of punish
ments, because it concerns another individual than
the delinquent. But these two ends have a real
connexion. There are punishments which have
the double effect of affording compensation to the
* Traites, &c. torn, ii, p. 310.
22 B.I. CH.IIJ. OF THE ENDS OF PUNISHMENT.
party injured, and of inflicting a proportionate
suffering on the delinquent ; so that these two
ends may be effected by a single operation. This
is, in certain cases, the peculiar advantage of
pecuniary punishments.
23
CHAPTER IV.
CASES UNMEET FOR PUNISHMENT.
ALL punishment being in itself evil, upon the
principle of utility, if it ought at all to be ad
mitted, it ought only to be admitted in as far as
it promises to exclude some greater evil.
It is plain, therefore, that in the following
cases punishment ought not to be inflicted :
1. Where it is groundless: 2. Where it must be
inefficacious ; because it cannot act so as to pre
vent the mischief: 3. Where it is unprofitable or
too expensive: 4. Where it is needless; because
the mischief may be prevented or cease of itself
without it.
I. Cases in which punishment is groundless.
1. Where there has never been any mischief,
as in the case of consent : Such consent, provided
it be free and fairly given, being the best proof
that can be obtained, that at least no immediate
mischief upon the whole has been done to the
party who gives it.
2. Where the mischief is outweighed by the pro
duction of a benefit of greater value, as in precau
tions against instant calamity, and the exercise of
domestic, judicial, military, and supreme powers.
II. Cases in which punishment must be inefficacious.
These are, 1 . Where the penal provision is not
established until after the act is done. Such are
the cases of an ex post facto law, and of a sentence
beyond the law. 2. Where the penal provision,
24 JJ.I. C.IV. CASES UNMEET FOR PUNISHMENT.
though established, is not conveyed to the notice of
the person on whom it is intended to operate,
as from want of due promulgation. 3. Where
the penal provision, though it were conveyed to
the individual s notice, could produce no effect with
respect to preventing his engaging in the act pro
hibited : as in the cases of extreme infancy, insa
nity, and intoxication. 4. Where the penal provi
sion, though present to the party s notice, does
not produce its effect, because he knows not the
act he is about to engage in is of the number of
those to which the penal provision relates.
5. Where, though the penal clause might exert a
full and prevailing influence were it to act alone,
yet by the predominant influence of some opposite
cause upon the will, such as physical danger or
threatened mischief, it must necessarily be inef
fectual. 6. Where, though the penal clause may
exert a full and prevailing influence over the will
of the party, yet his physical faculties (owing to
the predominant influence of some physical cause)
are not in a condition to follow the determination
of his will : insomuch that the act is absolutely
involuntary, as through compulsion or restraint.
III. Cases where punishment is unprofitable.
If the evil of the punishment exceed the evil of
the offence, the punishment will be unprofitable,
the legislator will have produced more suffering
than he has prevented. He will have purchased
exemption from one evil at the expense of a
greater.
The evil resulting from punishment divides
itself into four branches : 1. The evil of coercion
or restraint, or the pain which it gives a man not
to be able to do the act, whatever it be, which,
by the apprehension of the punishment, he is
B.I. C.I V. CASES UNMEET FOR PUNISHMENT. 25
deterred from doing. 2. The evil of apprehension,
or the pain which a man, who has exposed himself
to punishment, feels at the thoughts of under
going it. 3. The evils of sufferance, or the pain
which a man feels, in virtue of the punishment
itself, from the time when he begins to undergo it.
4. The pain of sympathy, and the other derivative
evils resulting to the persons who are in connection
with those who suffer from the preceding causes.
IV. Cases where punishment is needless.
A punishment is needless, where the purpose of
putting an end to the practice may be attained as
effectually at a cheaper rate, by instruction, for
instance, as well as by terror ; by informing the
understanding, as well as by exercising an imme
diate influence on the will. This seems to be the
case with respect to all those offences which con
sist in the disseminating pernicious principles in
matters of duty, of whatever kind the duty may be,
whether political, moral, or religious. And this,
whether such principles be disseminated under,
or even without a sincere persuasion of their being
beneficial. I say even without; for though, in such
a case, it is not instruction that can prevent the
individual from endeavouring to inculcate his
principles, yet it may prevent others from adopting
them : without which, the endeavours to inculcate
them will do no harm. In such a case, the sove
reign will commonly have little occasion to take
an active part : if it be the interest of one individual
to inculcate opinions that are pernicious, it will
surely be the interest of other individuals to expose
them. But if the sovereign must needs take a part
in the controversy, the pen is the proper weapon
wherewith to combat error, and not the sword.
On the other hand, as to the evil of the offence,
26 B. I.C. IV. CASES UNMEET FOtt PUNISHMENT.
this will, of course, be greater or less according
to the nature of each offence. The proportion
between the one evil and the other will therefore
be different in the case of each particular offence.
The cases, therefore, where punishment is unpro
fitable on this ground, can by no other means be
discovered, than by an examination of each parti
cular offence.
These considerations ought at all times to be
present to the mind of the legislator, whenever he
establishes any punishment. It is from them that
he will derive his principal reasons for general
amnesties, on account of the multitude of delin
quents : for the preservation of a delinquent,
whose talents could not be replaced, or whose
punishment would excite the public displeasure,
or the displeasure of foreign powers.
27
CHAPTER V.
EXPENSE OF PUNISHMENT.
Expense of Punishment. This expression, which
has not yet been introduced into common use, may
at first sight be accused of singularity and pedantry.
It has however been chosen upon reflection as the
only one which conveys the desired idea, without
conveying at the same time an anticipated judg
ment of approbation or disapprobation. The pain
produced by punishments, is as it were a capital
hazarded in expectation of profit. This profit is
the prevention of crimes. In this operation every
thing ought to be taken into the calculation of
profit and loss ; and when we estimate the profit,
we must subtract the loss ; from which it evidently
results that the diminution of the expense, or the
increase of the profit, equally tend to the produc
tion of a favourable balance.
The term expense once admitted naturally intro
duces that of economy or frugality. The mildness
or the rigour of punishments is commonly spoken
of : these terms include a prejudice in the one case
of favour, in the other of disfavour, which prevents
impartiality in their examination. But to say that
a punishment is economic, is to use the language
of reason and calculation.
We should say then that a punishment is econo
mic, when the desired effect is produced by the
employment of the least possible suffering. We
should say that is too expensive, when it produces
more evil than good; or when it is possible to
obtain the same good by means of a less punish
ment.
28 B.I. CH. V. EXPENSE OF PUNISHMENT.
In this place distinction should be made between
the real and the apparent value of a punishment.
By the real value, I mean that which it would
be found to have by one who, like the legislator,
is in a condition accurately to trace and coolly to
estimate it through all its parts, exempt from the
delusions which are seen to govern the uninformed
and unthinking part of mankind ; knowing, before
hand, upon general principles, what the delinquent
will know afterwards by particular experience.
By the apparent value of a punishment, I mean
that which it appears to a delinquent to have at
any time previous to that in which he comes to
experience it ; or to a person under temptation to
become a delinquent previous to the time at
which, were he to become so, he would exoe-
nence it.
The real value of the punishment constitutes
the expense. The apparent value influences the
conduct of individuals. It is the real punishment
that is the expense the apparent punishment that
gives the profit.
The profit of punishments has reference to the
interests of two parties the public, and the party
injured. The expense of the punishment adds to
this number a third interest, that of the delin
quent.
It ought not to be forgotten, although it has been
too frequently forgotten, that the delinquent is a
member of the community, as well as any other
individualas well as the party injured himself ;
and that there is just as much reason for consult
ing his interest as that of any other. His welfare
is proportionably the welfare of the community
his suffering the suffering of the community. It
may be right that the interest of the delinquent
should in part be sacrificed to that of the rest of
B. I.CH.V. EXPENSE OF PUNISHMENT. 29
the community ; but it never can be right that it
should be totally disregarded. It may be prudent
to hazard a great punishment for the chance of
obtaining a great good : it would be absurd to
hazard the same punishment where the chance is
much weaker, and the advantage much less. Such
are the principles which direct men in their private
speculations. Why should they not guide the
legislator ?
Ought any real punishments to be inflicted ?
Most certainly. Why ? For the sake of producing
the appearance of it. Upon the principle of utility,
except as to so much as is necessary for reforma
tion and compensation, for this reason, and for no
other whatever. Every particle of real punish-
(ment that is produced more than what is necessary
for the production of the requisite quantity of
apparent punishment, is just so much misery run
to waste. Hence the real punishment ought to
be as small, and the apparent punishment as great
as possible. If hanging a man in effigy, would
produce the same salutary impression of terror
upon the minds of the people, it would be folly or
cruelty ever to hang a man in person. *
* At the Cape of Good Hope, the Dutch made use of a stra
tagem which could only succeed among Hottentots. One of
their officers having killed an individual of this inoffensive tribe,
the whole nation took up the matter and became furious and
implacable. It was necessary to make an example to pacify
them. The delinquent was therefore brought before them in
irons, as a malefactor: he was tried with great form, and was
condemned to swallow a goblet of ignited brandy. The man
played his part ; he feigned himself dead, and fell motionless.
His friends covered him with a cloak, and bore him away. The
Hottentots declared themselves satisfied. " The worst we should
have done with the man," said they, " would have been to throw
him into the fire ; but the Dutch have done better they have
put the fire into the man." Lloyd s Evening Post, for August
or September 1776.
30 B.I. CH.V. EXPENSE OF PUXISHMENT.
If delinquents were constantly punished for
their offences, and nobody else knew of it, it is
evident that, excepting the inconsiderable benefit
which might result in the way of disablement, or
reformation, there would be a great deal of mis
chief done, and not the least particle of good.
The real punishment would be as great as ever,
and the apparent would be nothing. The punish
ment would befal every offender as an unforeseen
evil. It would never have been present to his
mind to deter him from the commission of crime.
It would serve as an example to no one.
Delinquents may happen to know nothing of the
punishment provided for them in either of two
cases. 1. When it is inflicted without having
been previously made known. 2. When, though
promulgated, it has not been made known to the
individual. The latter of these cases may be the
case where the punishment is appointed by statute
or as it is called, written law. The former must
happen in all new cases where the punishment is
appointed in the way of common or unwritten law.
The punishment appointed by the law may be
presented to the mind in two ways: 1. By its
legal denunciation and description: 2. By its
public execution, when it is inflicted with suitable
notoriety.
The notion entertained of a punishment ought
to be exact, or, as the logicians would say, ade
quate ; that is, it should present to the mind not
only a part, but the whole of the sufferings it
includes. The denunciation of a punishment ought
therefore to include all the items of which it is
composed, since that which is not known cannot
operate as a motive.
Hence we may deduce three important max
ims :
B. I.CH.V. EXPENSE OF Pl MSHMENT. 31
1 . That a punishment that is more easily learnt,
is better than one that is less easily learnt.
/
2. That a punishment that is more easily remem
bered, is better than one that is less easily remem
bered.
3. That a punishment that appears of greater
magnitude in comparison of what it really is, is
better than one that appears of less magnitude. **
32
CHAPTER VI.
MEASURE OF PUNISHMENT.
Adsit
Regula, peccatis quae pcenas irroget aquas.
Ne scutica dignum, horribili sectere flagello.
Hon. L. 1. Sat. iii.
ESTABLISH a proportion between crimes and
punishments has been said by Montesquieu,
Beccaria, and many others. The maxim is, with
out doubt, a good one, but whilst it is thus con
fined to general terms, it must be confessed it is
more oracular than instructive. Nothing has been
accomplished till wherein this proportion consists
has been explained, and the rules have been laid
down by which it may be determined that a certain
measure of punishment ought to be applied to a
certain crime.
Punishments may be too small or too great ;
and there are reasons for not making them too
small, as well as not making them too great. The
terms minimum and maximum may serve to mark
the two extremes of this question, which require
equal attention.
With a view of marking out the limits of punish
ment on the side of the first of these extremes, we
may lay it down as a rule :
1. That the value of the punishment must not
be less in any case than what is sufficient to out
weigh that of the profit of the offence.
By the profit of the crime, must be understood
not only pecuniary profit, but every advantage,
real or apparent, which has operated as a motive
to the commission of the crime.
B.I.CH.VI. MEASURE OF PUNISHMENT. 33
The profit of the crime is the force which urges
a man to delinquency the pain of the punishment
is the force employed to restrain him from it. If
the first of these forces be the greater, the crime
will be committed ;* if the second, the crime will
not be committed. If then a man, having reaped
the profit of a crime, and undergone the punish
ment, finds the former more than equivalent to the
latter, he will go on offending for ever ; there is
nothing to restrain him. If those, also, who behold
him, reckon that the balance of gain is in favour
of the delinquent, the punishment will be useless
for the purposes of example.
The Anglo-Saxon laws, which fixed a price upon
the lives of men ; 200 shillings for the murder of
a peasant, six times as much for that of a noble
man, and thirty-six times as much for that of the
king, evidently trangressed against this rule. In
a great number of cases, the punishment would
appear nothing, compared with the profit of the
crime.
The same error is committed whenever a punish
ment is established which reaches only to a
certain fixed point, which the advantage of the
crime may surpass.
Authors of celebrity have been found desirous
of establishing a rule precisely the reverse, they
have said that the greatness of temptation is a
reason for lessening the punishment ; because it
lessens the fault ; because the more powerful the
seduction, the less reason is there for concluding
that the offender is depraved. Those, therefore,
who are overcome, in this case, naturally inspire
us with commiseration. )*
* That is to say, committed by those who are only restrained
by the laws, and not by any other tutelary motives, such as be
nevolence, religion, or honour.
f One is astonished that a writer of such consummate geniui
D
34 B.I. CH.VI. MEASURE OF PUNISHMENT.
This may all be very true, and yet afford no
reason for departing from the rule. That it may
prove effectual, the punishment must be more
dreaded than the profit of the crime desired.
Besides, an inefficacious punishment is doubly
mischievous ; mischievous to the public, since it
permits the crime to be committed, mischievous
to the delinquent, since the punishment inflicted
upon him is just so much misery in waste. What
should we say to the surgeon, who, that he might
save his patient a small degree of pain, should
only half cure him ? What should we think of his
humanity, if he should add to his disease the tor
ment of a useless operation ?
It is, therefore, desirable that punishment
should correspond to every degree of temptation ;
at the same time, the power of mitigation might be
reserved in those cases where the nature of the
temptation itself indicates the absence of con
firmed depravity, or the possession of benevolence
as might be the case should a father commit a
theft that he might supply his starving family with
bread.*
as Adam Smith should have fallen into this mistake ; speaking
of smuggling, he says : " The law, contrary to all the ordinary
principles of justice, first creates the temptation, and then
punishes those who yield to it ; and it commonly enhances the
punishment, too, in proportion to the very circumstance which
ought certainly to alleviate it the temptation to commit the .
crime." Wealth of Nations, b. 5, ch. ii.
* It is easy to estimate the profit of a crime in cases of rapa
city, but how are we to ascertain it in those of malice and
enmity?
The profit may be estimated by the nature of the mischief
that the offender has done to his adversary. Has his conduct
been more offensive than painful ? The profit is the degree of
humiliation that he believes his adversary to have undergone.
Has he mutilated or wounded him? The profit is the degree of
suffering he has inflicted.
In this, in his own opinion, consists the profit of his offence :
B.l.CH.VI. MEASURE OF PUNISHMENT. 35
Rule II. The greater the mischief of the offence,
the greater is the expense it may be worth while to be
at, in the way of punishment.
This rule is so obvious in itself, that to say any
thing in proof of it would be needless ; but how
few are the instances in which it has been ob
served. It is not long since that women were
condemned to be burnt alive for uttering bad
money. The punishment of death is still lavished
on a multitude of offences of the least mischievous
description. The punishment of burning is still
in use in many countries for offences which might
safely be left to the restraint of the moral sanction.
If it can be worth while to be at the expense of so
terrible a punishment as that of burning alive, it
ought to be reserved for murder or incendiarism.
It will be said, perhaps, that the intention of
legislators has always been to follow this rule, but
that their opinions, as well as those of the people,
have fluctuated respecting the relative magnitude
and nature of crimes. At one period, witchcraft
was regarded as the most mischievous offence.
Sorcerers, who sold their souls to the devil, were
objects of abhorrence. A heretic, the enemy of
the Almighty, drew down divine wrath upon a
whole kingdom. To steal property consecrated
to divine uses was an offence of a more malignant
nature than ordinary theft, the crime being
directed against the Divinity. A false estimate
being made of these crimes, an undue measure
of punishment was applied to them.
Rule III. When two offences come in competition.
if then he is punished in an analogous manner, he is struck in
the most sensible part, which has, so to speak, been pointed out
by himself; for it is not possible but that the mischief which he
has chosen as the instrument of his vengeance, must appear
hurtful to himself.
36 B.I. CH.VI. MEASURE OF PUNISHMENT.
the punishment for the greater offence must be suf
ficient to induce a man to prefer the less.
Two offences may be said to be in competition,
when it is in the power of an individual to commit
both. When thieves break into a house, they may
execute their purpose in different manners ; by
simply stealing, by theft accompanied with bodily
injury, or murder, or incendiarism. If the punish
ment is the same for simple theft, as for theft and
murder, you give the thieves a motive for commit
ting murder, because this crime adds to the
facility of committing the former, and the chance
of impunity when it is committed.
The great inconvenience resulting from the
infliction of great punishments for small offences,
is, that the power of increasing them in proportion
to the magnitude of the offence is thereby lost.*
Rule IV. The punishment should be adjusted in
such manner to each particular offence, that for
every part of the mischief there may be a motive to
restrain the offender from giving birth to it.
Thus, for example, in adjusting the punishment
for stealing a sum of money, let the magnitude
of the punishment be determined by the amount
of the sum stolen. If for stealing ten shillings an
offender is punished no more than for stealing five ;
the stealing of the remaining five of those ten shil-
* Montesquieu, after having recommended this rule of pro
portion, adds, " Quand il n y a point de difference dans la
peine, il faut en mettre, dans 1 esperance de la grace ; en Angle-
terre, on n assassine point (il auroit du dire peu), parce que les
voleurs peuvent esperer d etre transportes dans les colonies, non
pas les assassines." Esprit des Lois. lib. 6, ch. xvi.
This expectation of favour, no doubt, contributes to the effect
of which he speaks, but why should this manifest imperfection
in the laws remain, that it may be corrected by an arbitrary act
of the sovereign ? If an uncertain advantage produces this mea-
ure of good, a certain advantage would operate more surely.
B.I. CII.VI. MEASURE OF PUNISHMENT. 37
lings is an offence for which there is no punish
ment at all.
The last object is, whatever mischief is guarded
against, to guard against it at as cheap a rate as
possible ; therefore,
Rule V. The punishment ought in no case to be
more than what is necessary to bring it into conformity
with the rules here given.
Rule VI. That the quantity of punishment actually
inflicted on each individual offender, may correspond
to the quantity intended for similar offenders in gene
ral, the several circumstances influencing sensibility
ought always to be taken into the account.
The same nominal punishment is not, for dif
ferent individuals, the same real punishment. Let
the punishment in question be a fine : the sum
that would not be felt by a rich man, would be
ruin to a poor one. The same ignominious punish
ment that would fix an indelible stigma upon a
man of a certain rank, would not affect a man of a
lower rank. The same imprisonment that would
be ruin to a man of business, death to an old man,
and destruction of reputation to a woman, would
be as nothing, or next to nothing, to persons placed
in other circumstances.
The law may, by anticipation, provide that such
or such a degree of mitigation shall be made in the
amount of the punishment, in consideration of
such or such circumstances influencing the sensi
bility of the patient such as age, sex, rank, &c.
But in these cases considerable latitude must be
left to the Judge.*
Of the above rules of proportion, the four first
may serve to mark out the limits on the minimum
* See Introduction to Morals and Legislation, circumstances
influencing sensibility.
38 B.I.CH.VJ. MEASURE OF PUNISHMENT.
side ; the limits below which a punishment ought
not to be diminished ; the fifth will mark out the
limits on the maximum side, the limits above
which it ought not to be increased.
The minimum of punishment is more clearly
marked than its maximum. What is too little is
more clearly observed than what is too much.
What is not sufficient is easily seen, but it is not
possible so exactly to distinguish an excess. An
approximation only can be attained. The irregu
larities in the force of temptations, compel the
legislator to increase his punishments till they are
not merely sufficient to restrain the ordinary desires
of men ; but also the violence of their desires when
unusually excited.
The greatest danger lies in an error on the
minimum side, because in this case the punish
ment is inefficacious ; but this error is least likely
to occur, a slight degree of attention sufficing for
its escape ; and when it does exist, it is at the
same time clear and manifest, and easy to be
remedied. An error on the maximum side, on the
contrary, is that to which legislators and men in
general are naturally inclined antipathy, or a
want of compassion for individuals who are
represented as dangerous and vile, pushes them
onward to an undue severity. It is on this side,
therefore, that we should take the most precau
tions, as on this side there has been shewn the
greatest disposition to err.
By way of supplement and explanation to the
first rule, and to make sure of giving to the punish
ment the superiority over the offence, the three
following rules may be laid down.
Rule. VII. That the value of the punishment may
outweigh the profit of the offence, it must be increased
B.I. CH.VI. MEASURE OF PUNISHMENT. 39
in point of magnitude, in proportion as it falls short in
point of certainty.
Rule VIII. Punishment must be further increased
in point of magnitude, in proportion as it falls short
in point of proximity.
The profit of a crime is commonly more certain
than its punishment, or what amounts to the same
thing, appears so to the offender. It is generally
more immediate, the temptation to offend is pre
sent ; the punishment is at a distance. Hence
there are two circumstances which weaken the
effect of punishment, its uncertainty and its dis
tance.
Suppose the profit of a crime equal to 10/.
sterling, suppose the chance of punishment as one
to two. It is clear that if the punishment, sup
posing that it were to take place, is not more than
10/. sterling, its effect upon a man s mind whilst it
continues uncertain, is not equal to a certain loss
of 10/. sterling: it is only equal to a certain loss
of 5/. sterling. That it may be rendered equal to
the profit of the crime, it must be raised to 20/.
Unless men are hurried on by outrageous pas
sion, they do not engage in the career of crime
without the hope of impunity. If a punishment
were to consist only in taking from an offender
the fruit of his crime, and this punishment were
infallible, there would be no more such crimes
committed ; for what man would be so insensate
as to take the trouble of committing a crime with
the certainty of not enjoying its fruits, and the
shame of having attempted it ? But as there are
always some chances of escape, it is necessary
to increase the value of the punishment, to counter
balance these chances of impunity.
It is therefore true, that the more the certainty
of punishment can be augmented, the more it may
be diminished in amount. This is one advantage
40 B.I. CH.VI. MEASURE OF PUNISHMENT.
resulting from simplicity of legislation, and excel
lence of legal procedure.
For the same reason, it is necessary that the
punishment should be as near, in point of time, to
the crime as possible ; because its impression
upon the minds of men is weakened by distance;
and because this distance adds to the uncertainty
of its infliction, by affording fresh chances of
escape.
Rule IX. -When the act is conclusively indicative
of a habit, such an increase must be given to the
punishment as may enable it to outweigh the profit,
not only of the individual offence, but of such other
like offences as are likely to have been committed with
impunity by the same offender.
Severe as this conjectural calculation may ap
pear, it is absolutely necessary in some cases. Of
this kind are fraudulent crimes ; using false
weights or measures, and issuing base coin. If
the coiner was only punished according to the
value of the single crime of which he is convicted,
his fraudulent practice would, upon the whole,
be a lucrative one. Punishment would there
fore be inefficacious if it did not bear a proportion
to the total gain which may be supposed to have
been derived, not from one particular act, but from
a train of actions of the same kind.
There may be a few other circumstances or
considerations which may influence, in some small
degree, the demand for punishment ; but as the
propriety of these is either not so demonstrable, or
not so constant, or the application of them not so
determinate, as that of the foregoing, it may be
doubted whether they are worth putting on a level
with the others.
Rule X. When a punishment, which in point of
quality is particularly well calculated to answer its
intention, cannot exist in less than a certain quantity,
B.I. CH.VI. MEASURE OF PUNISHMENT. 41
it may sometimes be of use, for the sake of employing
it, to stretch a little beyond that quantity which, on
other accounts, would be strictly necessary.
Rule XI. In particular, this may be the case
where the punishment proposed is of such a nature as
to be particularly well calculated to answer the purpose
of a moral lesson.
Rule XII. In adjusting the quantum nf punish
ment, the circumstances by which all punishment may
be rendered unprofitable ought to be attended to.
And lastly, as too great a nicety in establishing
proportions between punishment and crime would
tend to defeat its own object, by rendering the
whole matter too complex ; we may add :
Rule XIII. Among provisions designed to perfect
the proportion between punishments and offences, if
any occur which by their own particular good effects
would not make up for the harm they would do by
adding to the intricacy of the Code, they should be
omitted.
The observation of rules of proportion between
crimes and punishments has been objected to as use
less, because they seem to suppose, that a spirit of
calculation has place among the passions of men,
who, it is said, never calculate. But dogmatic as
this proposition is, it is altogether false. In mat
ters of importance every one calculates. Each
individual calculates with more or less correctness,
according to the degrees of his information, and
the power of the motives which actuate him, but
all calculate. It would be hard to say that a
madman does not calculate. Happily, the passion
of cupidity, which on account of its power, its
constancy, and its extent, is most formidable to
society ; is the passion which is most given to
calculation. This, therefore, will be more suc
cessfully combated, the more carefully the law
turns the balance of profit against it.
42
CHAPTER VII.
OF THE PROPERTIES TO BE GIVEN TO A LOT
OF PUNISHMENT.
IT has been shewn what rules ought to be ob
served in adjusting the proportion between punish
ment and offences. The properties to be given to
a lot of punishment in every instance will of course
be such as it stands in need of, in order to be
capable of being applied in conformity to those
rules : the quality will be regulated by the quantity.
I. Variability.
The first quality desirable in a lot of punish
ment is variability ; that it be susceptible of de
grees both of intensity and duration.
An invariable punishment cannot be made to
correspond to the different degrees of the scale of
punishment : it will be liable to err either by ex
cess or defect : in the first case it would be too
expensive, in the second inefficacious.
Acute corporeal punishments are extremely
variable in respect of intensity, but not of dura
tion. Penal labour is variable in both respects, in
nearly equal degrees.
Chronic punishments, such as banishment and
imprisonment, may be easily divided as to their
duration : they may also be varied as to their in
tensity. A prison may be more or less severe.
Banishment may be directed to a genial or uiige-
nial clime.
II. Equability.
A second property, intimately connected with
13. I. CH. VII. OF THE PROPERTIES, ETC. 43
the former, may be stiled equability. It will avail
but little that a mode of punishment (proper in all
other respects) has been established by the legis
lature, 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 circum
stances, to produce a very heavy degree of pain,
or a very slight one, or even none at all. An
equable punishment is free from this irregularity :
an unequable one is liable to it.
Banishment is unequable. It may either prove
a punishment or not, according to the temper, the
age, the rank, or the fortune of the individuals.
This is also the case with pecuniary or quasi pecu
niary punishment, when it respects some particu
lar species of property which the offender may or
may not possess. By the English law there are
several offences which are punished by a total for
feiture of moveables, not extending to immove-
ables. In some cases this is the principal punish
ment in others, even the only one. The con
sequence is, that if a man s fortune happen to
consist in moveables, he is ruined ; if in immove-
ables, he suffers nothing.
In the absence of other punishment, it may be
proper to admit an unequable punishment. The
chance of punishing some delinquents is preferable
to universal impunity.
One mode of obviating the evil of inequality
consists in the providing of two different species of
punishment, not to be used together, but that the
one may be substituted for and supply the defects
of the other : for example, corporeal may be sub
stituted for pecuniary punishment, when the po
verty of the individual prevents the application of
the latter.
44 B. I. C. VII. OF THE PROPERTIES TO BE GIVEN
An uncertain punishment is unequable. Com
plete certainty supposes complete equability ; that
is to say, that the same punishment shall produce
in every case the same degree of suffering. Such
accuracy is however evidently unattainable, the
circumstances and sensibility of individuals being
so variable and so unequal. All that can be
accomplished is to avoid striking and manifest
inequality. In the preparation of a penal code, it
ought constantly to be kept in view, that accord
ing to circumstances, of condition, fortune, age,
sex, &c. the same nominal is not the same real
punishment. A fixed fine is always an unequable
punishment ; and the same remark is applicable
to corporeal punishments. Whipping is not the
same punishment when applied to all ages and
ranks of persons. In China, indeed, every one is
submitted to the bamboo, from the water-carrier
to the mandarin ; but this only proves, that among
the Chinese the sentiments of honour are unknown.
III. Commcnsurability .
Punishments are commensurable when the penal
effects of each can be measured, and a distinct
conception formed, of how much the suffering pro
duced by the one falls short of or exceeds that
produced by another. Suppose a man placed in
a situation to choose between several crimes, he
can obtain a sum of money by theft, by murder,
or by arson : the law ought to give him a motive
to abstain from the greatest crime ; he will have
that motive, if he see that the greatest crime draws
after it the greatest punishment : he ought, there
fore to be able to compare these punishments
among themselves, and measure their different
degrees.
If the same punishment of death is denounced
B.I. CH. VII. TO A LOT OF PUNISHMENT. 45
for these three crimes, there is nothing to compare ;
the individual is left free to choose that crime
which appears most easy of execution, and least
liable to be detected.
Punishments may be made commensurable in
two ways : 1. By adding to a certain punishment
another quantity of the same kind ; for example,
to five years of imprisonment for a certain crime,
two more years for a certain aggravation : 2. By
adding a punishment of a different kind, for ex
ample, to five years of imprisonment for a certain
crime, a mark of disgrace for a certain aggrava
tion.
IV. Characteristicalness.
Punishment can act as a preventative only when
the idea of it, and of its connection with the crime,
is present to the mind. Now, to be present, it
must be remembered, and to be remembered it
must have been learnt. But of all punishments
that can be imagined, there are none of which the
connection with the offence is either so easily
learnt, or so efficaciously remembered, as those
of which the idea is already in part associated with
some part of the offence, which is the case when
the one and the other have some circumstance
that belongs to them in common.
The law of retaliation is admirable in this re
spect. An eye for an eye, and a tooth for a tooth.
The most imperfect intelligence can connect these
ideas. This rule of retaliation is however rarely
practicable ; it is too unequable and too expensive ;
recourse must therefore be had to other sources of
analogy. We shall therefore recur to this subject
in the next chapter.
V. Exemplar ity.
A mode of punishment is exemplary in proper-
46 B.I. C. VII. OF THE PROPERTIES TO BE GIVEN
tion to its apparent, not to its real magnitude. It
is the apparent punishment that does all the ser
vice in the way of example. A real punishment,
which should produce no visible effects, might
serve to intimidate or reform the offender subjected
to it, but its use, as an example to the public,
would be lost.
The object of the legislator ought therefore to
be, so far as it may be safely practicable, to select
such modes of punishment, as, at the expense of
the least real, shall produce the greatest apparent
suffering ; and to accompany each particular mode
of punishment with such solemnities as may be best
calculated to further this object.
In this point of view, the auto-da-fes would fur
nish most useful models for acts of justice. What
is a public execution ? It is a solemn tragedy
which the legislator presents before an assembled
people, a tragedy truly important, truly pathetic,
by the sad reality of its catastrophe, and the gran
deur of its object. The preparation for it the
place of exhibition and the attendant circum
stances, cannot be too carefully selected, as upon
these the principal effect depends. The tribunal,
the scaffold, the dresses of the officers of justice,
the religious service, the procession, every kind of
accompaniment, ought to bear a grave and melan
choly character. The executioners might be veiled
in black, that the terror of the scene might be
heightened, and these useful servants of the state
screened from the hatred of the people.
Care must however be taken lest punishment
become unpopular and odious through a false ap
pearance of rigour.
VI. Frugality.
If any mode of punishment is more apt than
another to produce superfluous and needless pain.
B. I.CH.VII. TO A LOT OF PUNISHMENT. 47
it may be styled unfrugal ; if less, it may be
styled frugal. The perfection of frugality in a
mode of punishment is where not only no super
fluous 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 pur
pose of producing pleasure on the part of some
other person.
Pecuniary punishments possess this quality in
an eminent degree ; nearly all the evil felt by the
party paying, turns to the advantage of him who
receives.
There are some punishments, which, with re
ference to the public expense, are particularly
unfrugal : for example, mutilations, applied to
offences of frequent occurrence, such as smug
gling. When an individual is rendered unable to
work, he must be supported by the state, or ren
dered dependant upon public charity, and thus
fixed as a burthen upon the most benevolent.
If the statement of Filangieri is correct, there
were constantly in the state prisons of Naples
more than forty thousand idle prisoners. What
an immense loss of productive power ! The largest
manufacturing town in England scarcely employs
a greater number of workmen.
By the military laws of most countries, deserters
are still condemned to death. It costs little to
shoot a man ; but everything which he might be
made to produce, is lost ; and to supply his place
a productive labourer must be converted into an
unproductive one.
VII. Subserviency to Reformation.
All punishment has a certain tendency to deter
from the commission of offences ; but if the delin
quent, after he has been punished, is only deterred
48 B.I. C. VII. OF THE PROPERTIES TO BE GIVEN
by fear from the repetition of his offence, he is
not reformed. Reformation implies a change of
character and moral dispositions.
Hence those punishments which are calculated
to weaken the seductive, and to strengthen the
preserving motives, have an advantage over all
others with respect to those offences to which they
can be applied.
There are other punishments which have an
opposite tendency, and which serve to render
those who undergo them still more vicious. Pu
nishments which are considered infamous, are
extremely dangerous in this respect, particularly
when applied to slight offences and juvenile
offenders. Diligentius enim vivit, cui aliquid integri
superest. Nemo dignitati perdita parcit. Impuni-
tatis genus estjam non habere pcentB locum. *
Of this nature also, in a high degree, is the
punishment of imprisonment, when care is not
taken to prevent the indiscriminate association of
prisoners ; but the juvenile and the hoary delin
quents are allowed to meet and to live together.
Such prisons, instead of places for reform, are
schools of crime.
VIII. Efficacy with respect to Disablement.
A punishment which takes away the power of
repeating the crime, must be very desirable, if not
too costly. Imprisonment, whilst it continues,
has this effect in a great measure. Mutilation
sometimes reduces the power of committing crimes
almost to nothing, and death destroys it altogether.
It will, however, be perceived, that whilst a man is
disabled from doing mischief, he is also in great
measure disabled from doing good to himself or
others.
* Senec. de Clem. chap. xxii.
B.I. C. VII. TO A LOT OF PUNISHMENT. 49
In some extraordinary cases the power of doing
mischief can only be destroyed by death : as,
for example, the case of civil war, when the mere
existence of the head of a party is sufficient to
keep alive the hopes and exertions of his partizans.
In such a case, however, the guilt of the parties is
often problematic, and the punishment of death
savours more of vengeance than of law.
There are however cases in which the ability to
do mischief may be taken away with great eco
nomy of suffering. Has the offence consisted in
an abuse of power, in an ^unfaithful discharge of
duty, it is sufficient to depose the delinquent, to
remove him from the employment, the administra
tion, the guardianship, the trust, he has abused.
This remedy may equally be employed in domestic
and political government.
IX. Subserviency to Compensation.
A further property desirable in a lot of punish
ment is, that it may be convertible to profit.
When a crime is committed, and afterwards
punished, there has existed two lots of evil the
evil of the offence, and the evil of the punishment.
Whenever then the evil of the offence falls upon a
specific person, if the punishment yield a profit,
let the profit arising from it be given to that per
son. The evil of the offence will be removed, and
there will then only exist one lot of evil instead
of two. When there is no specific party injured,
as when the mischief of the crime consists in alarm
or danger, there will be no specific injury to be
compensated ; still, if the punishment yield a
profit, there is a clear balance of good gained.
This property is possessed in a more eminent
degree by pecuniary than by any other mode of
punishment.
50 B.I. C.VII. OF THE PROPERTIES TO BE GIVEN
X. Popularity.
In the rear of all these properties may be intro
duced that of popularity a very fleeting and inde
terminate kind of property, which may belong to
a lot of punishment one moment, and be lost by it
the next. This property, in strictness of speech,
ought rather to be called absence of unpopularity ;
for it cannot be expected, in regard to such a
matter as punishment, that any species or lot of it
should be positively acceptable and grateful to the
people ; it is sufficient, for the most part, if they
have no decided aversion to the thoughts of it.
The use of inserting this property in the cata
logue is, that it may serve as a memento to the
legislator not to introduce, without a cogent neces
sity, any mode or lot of punishment towards which
any violent aversion is entertained by the body of
the people, since it would be productive of useless
suffering suffering borne not by the guilty, but
the innocent ; and among the innocent by the most
amiable, by those whose sensibility would be
shocked, whose opinions would be outraged, by
the punishment which would appear to them
violent and tyrannical. The effect of such inju
dicious conduct on the part of a legislator would
be to turn the tide of popular opinion against him
self: he would lose the assistance which indivi
duals voluntarily lend to the execution of the laws
which they approve : the people would not be his
allies but his enemies. Some would favour the
escape of the delinquent ; the injured would hesi
tate to prosecute, and witnesses to bear testimony
against him. By degrees a stigma would attach
to those who assisted in the execution of the laws.
Public dissatisfaction would not always stop here ;
it would sometimes break out into open resistance
to the officers of justice and the execution of such
B.I. CH.VII. TO A LOT OF PUNISHMENT. 51
laws. Successful resistance would be considered
a victory, and the unpunished delinquent would
rejoice over the weakness of the laws disgraced by
his triumph.
The unpopularity of particular punishments
almost always depends upon their improper selec
tion. The more completely the penal code shall
become conformed to the rules here laid down,
the more completely will it merit the enlightened
approbation of the wise, and the sentimental
approval of the multitude.
XI. Simplicity of Description.
A mode of punishment ought also to be as
simple as possible in its description ; it ought to
be entirely intelligible ; and that not only to the
enlightened, but to the most unenlightened and
ignorant.
It will not always be proper, however, to con
fine punishments to those of a simple description ;
there are many offences in which it will be proper
that the punishment should be composed of many
parts, as of pecuniary fine, corporal suffering,
and imprisonment. The rule of simplicity must
give way to superior considerations. It has been
placed here that it may not be lost sight of.
The more complex punishment is, the greater
reason is there to fear that it will not be present
as a whole to the mind of an individual in the time
of temptation ; of its different parts he may never
have known some he may have forgotten others.
All the parts will be found in the real punishment,
but they have not been perceived in the apparent.
The name of a punishment is -an important
object. Enigmatical names spread a cloud over
the mass of punishments which the mind cannot
dissipate. The English laws are frequently defec-
52 B.I. C.VII. OF THE PROPERTIES TO BE GIVEN
live in this respect. A capital felony includes dif
ferent lots of punishment, the greater part unknown,
and consequently inefficacious. A felony with bene-
fa of clergy, is equally obscure : the threatening
of the law does not convey any distinct idea to the
mind ; the first idea which the term would offer
to an uninstructed person, would be that it had
some reference to a reward. A prtemunire is not
more intelligible ; even those who understand the
Latin word are far from comprehending the nature
of the punishment which it denounces.
Riddles of this kind resemble those of the
sphinx those are punished who do not decypher
them.
XII. Remissibility.
Remissibility is the last of all the properties
that seem to be requisite in a lot of punishment.
The general presumption is, that when punish
ment is applied, punishment .is needful : that it
ought to be applied, and therefore cannot be re
mitted. But in very particular, and those very
deplorable cases, it may by accident happen other
wise. Punishment may have been inflicted upon
an individual whose innocence is afterwards disco
vered. The punishment which he has suffered
cannot, it is true, be remitted, but he may be freed
from as much of it as is yet to come. There is
however little chance of there being any yet to
come, unless it be so much as consists of chronical
punishment ; such as imprisonment, banishment,
penal labour, and the like. So much as consists
in acute punishment, where the penal process itself
is over presently, however permanent the punish
ment may be in its effects, may be considered as
irremissible. This IB the case, for example, with
whipping, branding, mutilation, and capital punish-
B.I.CH. VII. TO A LOT OF PUNISHMENT. 53
ment. The most perfectly irremissible of any is
capital punishment. In all other cases means of
compensation may be found for the sufferings of
the unfortunate victim, but not in this.
The foregoing catalogue of properties desirable
in a lot of punishment, is far from unnecessary.
On every occasion, before a right judgment can be
formed, it is necessary to form an abstract idea of
all the properties the object ought to possess.
Unless this is done, every expression of approba
tion or disapprobation can arise only from a con
fused feeling of sympathy or antipathy. We now
possess clear and distinct reasons for determining
our choice of punishments. It remains only to
observe in what proportion a particular punish
ment possesses these different qualities.
If a conclusion is drawn from one of these qua
lities alone, it may be subject to error ; attention
ought to be paid not to one quality alone, but to
the whole together.
There is no one lot of punishment which unites
all these desirable qualities ; but, according to
the nature of the offences, one set of qualities are
more important than another.
For great crimes, it is desirable that punish
ments should be exemplary and analogous. For
lesser crimes, the punishments should be inflicted
with a greater attention to their frugality, and their
tendency to moral reformation. As to crimes
against property, those punishments which are
convertible to profit are to be preferred, since they
may be rendered subservient to compensation for
the party injured.
Note by DUMONT.
I subjoin to this chapter an example of the progressive march
of thought, and of the utility of these enumerations to which
54 B.I. C.VII. OF THE PROPERTIES TO BE GIVEN
every new observation may be referred, so that nothing may
be lost.
I have sought out from the works of Montesquieu all the
qualities which he appears to have regarded as necessary in a
lot of punishment. I have found only four, and these are either
expressed by indefinite terms or periphrasis.
1. He says, that Punishments should be drawn from the nature
of the crimes; and he appears to mean, that they should be
characteristic.
2. That they should be moderate-, an expression which is in
determinate, and does not yield any point of comparison.
3. That they should be proportional to the crime. This pro
portion has reference, however, rather to the quantity of the
punishment than to its quality. He has neither explained in
what it consists, nor given any rule respecting it.
4. That they should be modest.
Beccaria has mentionedjbwr qualities :
1. He requires that punishments should be analogous to the
crimes; but he does not enter into any detail upon this analogy.
2. That they should be public; and he means by that exem
plary.
3. That they be gentle ; an improper and unsignificant term,
whilst his observations upon the danger of excess in punishment
are very judicious.
4. That they should be proportional ; but he gives no rule for
this proposition.
He requires, besides this, that they should be certain, prompt,
and inevitable; but these circumstances depend upon the forms
of procedure in the application of punishment, and not upon its
qualities.
In his commentary upon Beccaria, Voltaire often recurs to the
idea of rendering punishments profitable. " A dead man is
good for nothing."
One of the heroes of humanity, the good and amiable Howard,
had continually in view the amendment of delinquents.
Confining our attention to those who are considered as oracles
in this branch of science, we cannot but observe tliat between
these scattered ideas, and vague conceptions, which have not
yet received a name, and a regular catalogue in which these
qualities are distinctly presented to us, with names and defini
tions, there is a wide interval. By thus placing them under
one point of view, another advantage is gained their true worth
and comparative importance is determined. Montesquieu was
dazzled by the merit of analogy in a punishment, and has attri
buted to it wonderful effects which it does not possess. Etprit
des Lois, xii. 4.
B.I. C. VII. TO A LOT OF PUNISHMENT. 65
These considerations appear to afford a sufficient answer to
the objection often raised against the methodic forms employed
by Mr. Bentham. I refer to his divisions, tables, and classifica
tions, which have been called his logical apparatus. All this, it
has been said, is only the scaffold, which ought to be taken down
when the building is erected. But why deprive his readers of
the instruments which the author has employed ? Why hide
from them his analytical labours and process of invention ?
These tables form a machine for thought, organum cogitativum.
The author discloses his secret; he associates his readers with
him in his labour ; he gives them the clue which has guided
him in his researches, and enables them to verify his results.
The singularity is this the extent of the service diminishes its
value.
I am sensible that by employing these logical methods as a
secret, by not exhibiting, so to speak, the skeleton, the muscles,
the nerves, much would be gained in elegance and interest.
By using the method of analysis, everything is announced
beforehand there is nothing unexpected ; the whole is clear;
and there are no points of surprise no flashes of genius to daz
zle for a moment, and then leave you in darkness. It requires
courage to follow up so severe a method, but it is the only method
which can completely satisfy the mind.
CHAPTER Vlil.
OF ANALOGY BETWEEN CRIMES AND PUNISHMENTS.
ANALOGY is that relation, connexion, or tye
between two objects, whereby the one being pre
sent to the mind, the idea of the other is naturally
excited.
Likeness is one source of analogy, contrast
another.* That a punishment may be analogous
to an offence, it is necessary that the crime should
be attended with some striking characteristic cir
cumstances, capable of being transferred upon the
punishment.
These characteristic circumstances will be dif
ferent in different crimes. In some cases they
may arise from the instrument whereby the mis
chief has been done ; in others, from the object to
which the mischief is done ; in others, from the
means employed to prevent detection.
The examples which follow are only intended
clearly to explain this idea of analogy. I shall
point out the analogy between certain crimes and
certain punishments, without absolutely recom
mending the employment of those punishments in
all cases. It is not a sufficient reason for the
adoption of a punishment that it is analogous ;
other considerations ought to be always regarded.
* Thus from the idea of a giant, the mind passes on to every
thing that is great. The Liliputians called Gulliver the Man-
mountain. Or, from the idea of a giant the mind may pass to
that of a dwarf.
B.I. CH.VIII. OF ANALOGY, ETC. 57
SECTION I. FIRST SOURCE OF ANALOGY.
The same Instrument used in the Crime as in the
Punishment.
Incendiarism, inundation, poisoning in these
crimes the instrument employed is the first cir
cumstance which strikes the mind. In their
punishment, the same instrument may be em
ployed.
With respect to incendiarism, we may observe,
that this crime should be considered as limited to
those cases in which some individual has perished
by fire : if no life has been lost, nor any personal
injury been suffered, the offence ought to be
treated as an ordinary waste ; whether an article
of property has been destroyed by fire, or any
other agent, does not make any difference. The
amount of the damage ought to be the measure of
the crime. Does a man set fire to a solitary and
uninhabited house; this would be an act of de
struction, and ought not to be ranked under the
definition of incendiarism.*
If the punishment of fire had been reserved for
incendiaries, the law would have had in its favour
both reason and analogy ; but in the legislation of
barbarous times, it has been generally employed
throughout Europe, for the crimes of magic and
heresy ; the first, an offence purely imaginary, the
second, a simple difference of religious opinion,
perfectly innocent, often useful, and with respect
to which, the only effect of punishment is to
produce insincerity.
Fire may be employed as an instrument of
* The employment of this means of destruction ought, how
ever, to be considered an aggravation, if there has been any
danger of the tire communicating to contiguous objects.
58 B.I. CH.VIII. OF ANALOGY BETWEEN
punishment, without occasioning death. This
punishment is variable in its nature through all the
degrees of severity of which there can be any
need. It would be necessary carefully to deter
mine in the text of the law, the part of the body
which ought to be exposed to the action of the
fire ; the intensity of the fire ; the time during
which it is to be applied, and the paraphanalia to
be employed to increase the terror of the punish
ment. In order to render the description more
striking, a print might be annexed in which the
operation should be represented.
Inundation is an offence less common than
incendiarism, in some countries it is altogether
unexampled, it can only be perpetrated in coun
tries- that are intersected by water, confined by
artificial banks. It is susceptible of every degree
of aggravation from the highest to the lowest. If
the offence consist merely in inundation, in effect
it amounts only to a simple destruction of property.
It is by the destruction of life that this crime is
raised to that degree of atrocity which requires
severe punishment.
A most evident analogy points out the means of
punishment, that is, the drowning of the criminal,
with such accompanying circumstances as will
add to the terror of the punishment. In a penal
code, which should not admit the punishment of
death, the offender might be drowned and then
restored to life. This might be made a part of
the punishment.
It may be asked, ought poison to be employed
as a means of punishment for a poisoner ?
In some respects there is no punishment more
suitable. Poisoning is distinguished from other
murders, by the secrecy with which it may be per
petrated, and the cool determination which it
B.I.CH.VIII. CRIMES AND PUNISHMENTS. 59
supposes. Of these two circumstances, the first
increases the force of temptation and the evil of the
crime ; the second, proves that the criminal, atten
tive to his own interest, is capable of serious
reflection upon the nature of the punishment. The
idea of perishing by the same kind of death which
he prepares, is the more frightful for him. In
every step of his preparations his imagination will
represent to him his own lot. In this point of view
the analogy would produce its full effect.
There are, however, many difficulties ; poisons
are uncertain in their operation. It would be neces
sary therefore to fix a time after which the
punishment should be abridged by strangulation.
If the effect of the poison should be to produce
sleep, the punishment may not be sufficiently
exemplary. If it produce convulsions and dis
tortions, it may prove hateful.
If the poison administered by the criminal has
not proved fatal, he may be made to take an anti
dote before the penal poison has produced death.
The dose and the time may be fixed by the Judges,
according to the report of skilful physicians.
The horror attached to this crime would most
probably render this punishment popular. And if
there is one country in which this crime is more
common than others, it is there that this punish
ment, which possesses so striking an analogy with
the crime, would be most suitable.
SEC. II. SECOND SOURCE OF ANALOGY.
For a Corporal Injury a similar Corporal Injury.
" An eye for an eye, a tooth for a tooth," In
crimes producing irreparable bodily injuries, the
part of the body injured will afford the character
istic circumstance. The analogy will consist in
GO B.I. CH.VIII. OF ANALOGY BETWEEN.
making the offender suffer an evil similar to that
which he has maliciouly and wilfully inflicted.
It will, however, be necessary to provide for
two cases that in which the offender does not
possess the member of which he has deprived the
party he has attacked, and that in which the loss
of the member would be more or less prejudicial to
him than to the party injured.
If the injury has been of an ignominious nature,
without permanent mischief Similar ignominy
may be employed in the punishment, when the
rank of the party and other circumstances permit.
SEC. 111. THIRD SOURCE OF ANALOGY.
Punishment of the Offending Member.
In crimes of deceit, the tongue and the hand are
the usual instruments. An exact analogy in the
punishment may be drawn from this circumstance.
In punishing the crime of forgery, the hand of
the offender may be transfixed by an iron instru
ment fashioned like a pen, and in this condition
he may be exhibited to the public previously to
undergoing the punishment of imprisonment.
In the utterance of calumny, and the dissemina
tion of false reports, the tongue is the instrument
employed. The offender might in the same man
ner be publicly exposed with his tongue pierced.
These punishments may be made more formi
dable in appearance than in reality, by dividing the
instruments in two parts, so that the part which
should pierce the offending member, need not be
thicker than a pin, whilst the other part of the
instrument may be much thicker, and appear to
penetrate with all its thickness.
Punishments of this kind may appear ridiculous,
but the ridicule which attaches to them enhances
B. I.CH.VIIF. CRIMES AND PUNISHMENTS. 61
their merit. This ridicule will be directed against
the cheat, whom it will render more despicable,
whilst it will increase the respect due to upright
dealing.
SEC. IV. FOURTH SOURCE OF ANALOGY.
Imposition of Disguise assumed.
Some offences are characterized by the assump
tion of a disguise to facilitate their commission :
a mask, or crape over the face, has commonly been
used. This circumstance constitutes an aggrava
tion of the offence ; it increases the alarm pro
duced, and diminishes the probability of detection;
and hence arises the propriety of additional punish
ment. Analogy would recommend the imprinting
on the offender a representation of the disguise
assumed. This impression might be made either
evanescent or indelible, according as the impri
sonment by which it may be accompanied, is to be
either temporary or otherwise. If evanescent, it
might be produced by the use of a black wash.
If indelible, by tattooing. The utility of this
punishment would be most particularly felt in
cases of premeditated murder, rape, irreparable
personal injury, and theft, when accompanied with
violence and alarm.
SEC. V. OTHEIl SOURCES OF ANALOGY.
There are other characteristic circumstances,
which do not, like the foregoing, fall into classes ;
which may, however, according to the nature of
the different offences, be employed as a foundation
for analogy.
In the fabrication of base coin, the art of the
delinquent may furnish an analogous source of
punishment. He has made an impression upon
the metal he has employed ; a like impression
62 B.I. CH. VIII. OF ANALOGY BETWEEN
may be made on some conspicuous part of his
face. This mark may be either evanescent or
indelible, according as the imprisonment by which
it is to be accompanied is either temporary or per
petual.
At Amsterdam, vagabonds and idle persons are
committed to the House of Correction, called the
Rasp House. It is said, that among other species
of forced labour, in which such characters are em
ployed, there is one reserved for those who are
incorrigible by other means ; which consists in
keeping a leaky vessel, in which the idle prisoner
is placed, dry, by means of a pump at which he
must work, if he would keep himself from being
drowned. Whether this punishment is in use or
not, it is an example of an analogous punishment
carried to the highest degree of rigour. If such
a method of punishment is adopted, it ought to be
accompanied with precise regulations for adjusting
the punishment to the strength of the individual
undergoing it.
The place in which a crime has been committed
may furnish a species of analogy. Catherine II.
condemned a man who had committed some knavish
trick at the Exchange, to sweep it out every day
that it was used, during six months.
Note by DUMONT.
I am not aware of any objection having been urged against
the utility of analogy in punishments : whilst it is spoken of only
in general terms, everybody acknowledges its propriety : when
we proceed to apply the principle, the imagination being the
chief judge of the propriety of its application, the diversity of
opinion is infinite. Hence some persons have been struck with
extreme repugnance in contemplating the analogous punish
ments proposed by Mr. Bentham,* whilst others have considered
them only as fit subjects for ridicule and caricature.
* Traiu -s cle Legislation.
B.I.CH.VIII. CRIMES AND PUNISHMENTS. G3
Success depends upon the choice of the means employed.
Those sources of analogy ought therefore to be avoided which
are not of a sufficiently grave character to be used as punish
ments ; but, it may be observed, that v/ith relation to certain
offences, those, for instance, which are accompanied by insolence
and insult, that an analogous punishment which excites ridicule,
is well calculated to humble the pride of the offender, and gra
tify the offended party.
Everything ought also to be avoided which has an appearance
of great study and refinement. Punishment ought only to be
inflicted of necessity, and with feelings of regret and repugnance.
The multitude of instruments possessed by a surgeon, may be
contemplated with satisfaction, as intended to promote the cure
and lessen the weight of our sufferings. The same satisfaction
will not, however, be felt in contemplating a variety of punish
ments, and they will most likely be considered as degrading to
the character of the legislator.
With these precautions, analogy is calculated to produce only
good effects. It puts us in the track of discovering the most
economical and efficacious punishments. I cannot resist the
pleasure of citing an example furnished me by a Captain in the
English Navy: He had not studied the principles of Mr. Ben-
tham, but he knew how to read the human heart.
The leave of absence generally granted to sailors, was for
twenty-four hours : if they exceeded this time, the ordinary
punishment was the cat-o -nine-tails. The dread of this punish
ment was a frequent cause of desertions. Many Captains, in
order to prevent both these offences, refused all leave of absence
to their sailors, so that they were kept on shipboard for years
together. The individual to whom I refer, discovered a method
of reconciling the granting of leave with the security of the
service. He made a simple change in the punishment : Every
man who exceeded his prescribed time of leave, lost his right to
a future leave, in proportion to his fault. If he remained on
shore more than twenty-four hours, he lost one turn : if more
than forty-eight hours, he lost two turns ; and so of the rest.
The experiment was perfectly successful. The fault became
less frequent, and desertions were unknown.
64
CHAPTER IX.
OF RETALIATION.
IF the law of retaliation were admissible in all
cases, it would very much abridge the labours of
the legislators. It would make short work of the
business of laying out a plan of punishment : a
word would supply the place of a volume.*
Before we say anything as to the advantage of
the rule, it will be proper to state with precision
what is meant by it. The idea given of it in
Blackstone s Commentaries, seems to be a correct
one ; it is that rule which prescribes, in the way
of punishment, the doing to a delinquent the same
hurt he has done (one might perhaps add, or at
tempted to do) to another. If the injury were
done to the person, the delinquent should be
punished in his person : if to property, in his pro
perty : if to the reputation, in his reputation.
This is the general scheme ; but this, however, in
itself, is not quite enough. To make the punish
ment come incontestibly under the law of retalia
tion, the identity between the subject of the offence
and that of the punishment should be still more
specific and determinate. If, for example, the
injury were to a man s house, for instance, by the
destruction of his house, then the delinquent should
have his house destroyed : if to his reputation, by
* The law of retaliation was often adopted in the early at
tempts at legislation. Among the laws of Alfred we find the
following article: "Si quis alterius occulum effoderit, com-
penset proprio, den tern prodente, manum pro manu, pedem pro
pede, adustionem pro adustione, vulnus pro vulnere, vimen pro
vimine." Wilk, LI. Ang. Sax. p. 30. Art. 19.
B.I.CH.IX. OF RETALIATION. 05
causing him to lose a certain rank, then the delin
quent should be made to lose the same rank : if
to the eyes, then the criminal should be made to
lose his eyes : if to his lip, then to lose his lip :
and in short, the more specific and particular the
resemblance between the subject of the offence
and of the punishment, the more strictly and in-
contestibly it would appear to come under the
rule. It is when the person is the subject of the
injury, that the resemblance is capable of being
rendered the most minute ; for it is in this case
that by means of the strict identity of the part
affected, " the hurt" is capable of being rendered
the most accurately the "same." An eye for an
eye, and a tooth for a tooth, are the familiar instances
that are put of the law of retaliation. In this case,
too, the identity may be pushed still further, by
affecting the same part in the same manner ; the
sameness of the hurt depending on the identity of
the one circumstance as well as of the other.
Thus, if the injury consisted in the burning out
of an eye, the punishment will be more strictly
the same, if it be effected by burning rather than
cutting out the eye of the delinquent.
The great merit of the law of retaliation is its
simplicity. Kit were capable of universal adop
tion, the whole penal code would be contained in
one law: "Let every offender suffer an evil
similar to that which he has inflicted."
No other imaginable plan can for its extent find
so easy an entrance into the apprehension, or sit
so easy on the memory. The rule is at once so
short and so expressive, that he who has once
heard it, is not likely to forget it, or ever to think
of a crime, but he must think also of its punish
ment. The stronger the temptation to commit an
offence, the more likely is its punishment to be an
F
00 B.I. CH.IX. OF RETALIATION.
object of dread. Thus the defence is erected on
the side of danger.
One advantage that cannot be denied to this
mode of punishment is its popularity, requiring
little expense of thought, it will generally be found
to possess the judgment of the multitude in its
favour. Should they in any instance be disposed
to quarrel with it, they will still be ready enough
probably to own it to be consonant to justice : but
that justice, they will say, is rigid justice, or to
vary the jargon, justice in the abstract. All this
while, with these phrases on their lips, they would
perhaps prefer a milder punishment, as being more
consonant to mercy, and, upon the whole, more
conducive to the general happiness : as if justice,
and especially penal justice, were something dis
tinct from, and adverse to, that happiness. When,
however, it happens not to give disgust by its
severity, nothing can be more popular than this
mode of punishment. This may be seen in the
case of murder, with respect to which the attach
ment to this mode of punishment is warm and
general. Blood (as the phrase is) will have blood.
Unless a murderer be punished with death, the
multitude of speculators can seldom bring them
selves to think that the rules of justice are
pursued.
The law of retaliation is, however, liable to a
variety of objections, one of which, so far as it
applies, is conclusive against its adoption. In a
great variety of cases it is physically inapplicable.
Without descending far into detail, a few instances
may suffice as examples. In the first place, it
can never be applied when the offence is merely
of a public nature, the characteristic quality of
such offences being, that no assignable individual
is hurt by them. If a man has been guilty of high
B.I. CH.IX. OK RETALIATION. 67
treason, or has engaged in criminal correspondence
with an enemy, or has, from cowardice, abandoned
the defence of a post entrusted to him ; how
would it be possible to make him suffer an evil
similar to that of which he has been the cause.
It is equally inapplicable to offences of the
semi-public class to offences which affect a cer
tain district, or particular class of the community.
The mischief of these offences often consists in
alarm and danger, which do not affect one indivi
dual alone, and therefore do not present any
opportunity for the exercise of retaliation.
With respect to self- regard ing offences, consist
ing of acts which offend against morality, the
application of this law would be absurd. The
individual has chosen to perform the act, to do the
same thing to him would not be to punish him.
In offences against reputation, consisting, for
instance, in the propagation of false reports affect
ing the character, it would be useless as a punish
ment to direct a similar false report to be propa
gated affecting the character of the delinquent.
The like evil would not result from the circula
tion of what was acknowledged to be false.
In offences against property, the punishment of
retaliation would at all times be defective in point
of exemplarity and efficacy, and, in many cases,
altogether inapplicable ; those who are most apt
to injure others in this respect, being, by their
poverty, unable to suffer in a similar manner.
For a similar reason it cannot be constantly
applied to offences affecting the civil condition of
individuals, to say nothing of the reasons that
might render it ineligible if it were possible to be
applied.
These exceptions reduce its possible field of
action to a very small extent, the only classes of
68 B.I. CH.IX. OF RETALIATION.
offences to which it will be found applicable, with
any degree of constancy, are those that affect the
person, and even here must be assumed what
scarcely ever exists, a perfect identity of circum
stances. Even in this very limited class of cases,
it would be found to err on the side of excessive
severity. Its radical defect is, its inflexibility.
The law ought so to apportion the punishment as
to meet the several circumstances of aggravation
or extenuation that may be found in the offence :
retaliation is altogether incompatible with any
such apportionment.
The class of people among whom this mode of
punishment is most likely to be popular, are those
of a vindictive character. Mahomet found it esta
blished among the Arabians, and has adopted it in
the Koran, with a degree of approbation, that
marks the extent of his talent for legislation. " O
you who have a heart, you will find in the law of
retaliation, and in the fear that accompanies it,
universal security." (Vol. I, ch. ii, On the Law.)
Either from weakness or ignorance, he encou
raged the prevailing vice which he ought to have
checked.
CHAPTER X.
POPULARITY.
To prove that an institution is agreeable to the
principle of utility, is to prove, as far as can be
proved, that the people ought to like it : but whe
ther they will like it or no after all, is another
question. They would like it if, in their judg
ments, they suffered themselves to be uniformly
and exclusively governed by that principle. By
this principle they do govern themselves in pro
portion as they are humanised and enlightened ;
accordingly, the deference they pay to its dictates
is more uniform in this intelligent and favoured
country than perhaps in any other. I speak here,
taking the great mass of the people upon this
occasion, as they ought to be taken upon every
occasion, into the account ; and not confining my
views, as is too commonly the case, to men of
rank and education.
Even in this country, however, their acqui
escence is far from being as yet altogether uniform
and undeviating: in some instances their judg
ments are still warped by antipathies or prejudices
unconnected with the principle of utility, and
therefore irreconcileable to reason. They are apt
to bear antipathy to certain offences without
regard to even their imputed mischievousness, and
to entertain a prejudice against certain punish
ments without regard to their eligibility with
respect to the ends of punishment.
The variety of capricious objections to which
each particular mode of punishment is exposed,
70 B.I. CH.X POPULARITY.
has no other limits than the fecundity of the ima
gination : with some slight exceptions, they may
however be ranged under one or other of the
following heads : Liberty Decency Religion
Humanity. What I mean by a capricious objec
tion, is an objection which derives the whole of
its apparent value from the impression that is apt
to be made by the use of those hallowed expres
sions : the caprice consists in employing them in
a perverted sense.
1. Liberty. Under this head there is little to be
said. All punishment is an infringement on
liberty : no one submits to it but from compul
sion. Enthusiasts, however, are not wanting,
who, without regarding this circumstance, con
demn certain modes of punishment, as, for exam
ple, imprisonment accompanied with penal labour,
as a violation of the natural rights of man. In a
free country like this, say they, it ought not to
be tolerated, that even malefactors should be
reduced to a state of slavery. The precedent is
dangerous and pernicious. None but men groan
ing under a despotic government can endure the
sight of galley-slaves.
When the establishment of the penitentiary sys
tem was proposed, this objection was echoed and
insisted on, in a variety of publications that ap
peared on that occasion. Examine this senseless
clamour, it will resolve itself into a declaration
that liberty ought to be left to those that abuse
it, and that the liberty of malefactors is an essen
tial part of the liberty of honest men.
2. Decency. Objections drawn from the topics
of decency are confined to those punishments, of
which the effect is to render those parts which it
is inconsistent with decency to expose, the objects
of sight or of conversation.
B.I. C1I.X POPULARITY. 71
Who can doubt, that in all punishments, care
should be taken that no offence be given to mo
desty. But modesty, like other virtues, is valu
able only in proportion to its utility. When the
punishment is the most appropriate, though not
either in its description or its execution altogether
reconcileable with modesty, this circumstance
ought not, as it appears to me, to stand in the
way of the attainment of any object of greater
utility. Castration, for example, seems the most
appropriate punishment in the case of rape, that
is to say, the best adapted to produce a strong
impression on the mind at the moment of tempta
tion. Is it expedient, then, on account of such
scruples of modesty, that another punishment, as,
for example, death, should be employed, which
is less exemplary, and, consequently, less effica
cious?*
3. Religion. Among Christians there are some
sects who conceive that the punishment of death
is unlawful : life, say they, is the gift of God, and
man is forbidden to take it away.
We shall find in the next book, that very cogent
reasons are not wanting for altogether abolishing
capital punishment, or, at most, for confining it
to extraordinary cases. But this pretence of
* It is said, that in one of the cities of Greece, among the
young women, instigated by I know not what disease of the
imagination, the practice of suicide was for a time extremely
prevalent. The magistrates, alarmed by its frequency, ordered
that as a sort of posthumous punishment, their bodies, in a state
of nudity, should be drawn through the public places. Into the
truth of the relation, it is needless to inquire : but the narrator
adds, the offence thenceforth altogether ceased. Here, then, is
an instance of the utility of a law offensive to modesty, proved
by its efficacy : for what higher degree of perfection can be
looked for in any penal law than that of preventing the offence.
72 B.I. CH.X. POPULARITY.
unlawfulness is a reason drawn from false prin
ciples.
Unlawful, means contrary to some law. Those,
who, upon the occasion in question, apply this ex
pression to the punishment of death, believe them
selves, or endeavour to make others believe, that
it is contrary to some Divine law : this Divine law
is either revealed or unrevealed ; if it be revealed,
it must be to be found in the text of those books
which are understood to contain the expressions of
God s will ; but as there exists no such text in
the New Testament, and as the Jewish law ex
pressly ordains capital punishment, the partizans
of this opinion must have recourse to some Divine
law not revealed to a natural law that is to
say, to a law deduced from the supposed will
of God.
But if we presume that God wills anything, we
must suppose that he has a reason for so doing, a
reason worthy of himself, which can only be the
greatest happiness of his creatures. In this point
of view, therefore, the Divine will cannot require
anything inconsistent with general utility.
If it be pretended that God can have any will
not consistent with utility, his will becomes a
fantastic and delusive principle, in which the
ravings of enthusiasm, and the extravagancies of
superstition, will find sanction and authority.
In many cases, religion has been to such a
degree perverted as to become a bar to the execu
tion of penal laws : as in the case of sanctuaries
opened for criminals, in the Romish churches.
Theodosius I. forbade all criminal proceedings
during Lent, alleging, as a reason, that the judges
ought not to punish the crimes of others whilst
they were imploring the Divine forgiveness for
B.I.CH.X. POPULARITY. 73
their own transgressions. Valentinian I. directed
that at Easter all prisoners should be discharged,
except those that were accused of the most malig
nant offences.
Constantine prohibited, by law, the branding
criminals on the face, alleging, that it is a viola
tion of the law of nature to disfigure the majesty
of the human face the majesty of the face of a
scoundrel !
The Inquisition, says Bayle, that it might not
violate the maxim, Ecclesia non novit sanguinem,
condemned its victims to be burnt alive. Reli
gion has had its quibbles as well as the law.
4. Humanity. Attend not to the sophistries
of reason, which often deceive, but be governed
by your hearts, which will always lead you to
right. I reject, without hesitation, the punish
ment you propose, it violates natural feelings, it
harrows up the susceptible mind, it is tyrannical
and cruel. Such is the language of your senti
mental orators.
But abolish any one penal law merely because
it is repugnant to the feelings of a humane heart,
and, if consistent, you abolish the whole penal
code, there is not one of its provisions that does
not, in a more or less painful degree, wound the
sensibility.
All punishment is in itself necessarily odious ;
if it were not dreaded, it would not effect its pur
pose ; it can never be contemplated with appro
bation, but when considered in connection with
the prevention of the crime against which it is
denounced.
I reject sentiment as an absolute Judge, but
under the control of reason it may not be a use
less monitor. When a penal dispensation is
revolting to the public feeling, this is not of itself
74 B.I. CH.X. POPULARITY.
a sufficient reason for rejecting it, but it is a
reason for subjecting it to a rigorous scrutiny. If
it deserves the antipathy it excites, the causes of
that antipathy may be easily detected. We shall
find that the punishment in question is mis-seated
or superfluous, or disproportionate to the offence^
or that it has a tendency to produce more mischief
than it prevents. By this means we arrive at the
seat of the error. Sentiment excites to reflection,
and reflection detects the impropriety of the law.
The species of punishment that command the
largest share of public approbation are such as
are analogous to the offence. Punishments of
this description are commonly considered just and
equitable ; but what is the foundation of this
justice and equity I know not. The delinquent
suffers the same evil he has caused. Ought the
law to imitate the example it condemns ? Ought
the Judge to imitate the malefactor in his wicked
ness ? Ought a solemn act of justice to be the
same in kind as an act of criminality ?
This circumstance satisfies the multitude ; the
mouth of the criminal is stopped, and he cannot
accuse the law of severity, without at the same
time being equally self-condemned.
Fortunately, the same bent of the imagination
that renders this mode of punishment popular,
renders it at the same time appropriate. The
analogy that presents itself to the people, presents
itself, at the moment of temptation, to the delin
quent, and renders it a peculiar object of dread.
It is of importance to detect and expose erro
neous conceptions, even when they happen to
accord with the principle of utility. The coinci
dence is a mere accident ; and whoever on any one
occasion forms his judgment, without reference to
this principle, prepares himself upon any other to
B.I. CII.X. POPULARITY. 75
decide in contradiction to it. There will be no
safe and steady guide for the understanding in its
progress till men shall have learnt to trust to this
principle alone, to the exclusion of all others.
When the judgment is to decide, the use of lau
datory or vituperative expressions, is the mere
babbling of children. They ought to be avoided
in all philosophical disquisitions, where the object
ought to be to instruct and convince the under
standing, and not to inflame the passions.
RATIONALE OF PUNISHMENT.
BOOK II.
OF CORPORAL PUNISHMENTS.
CHAPTER I.
SIMPLE AFFLICTIVE * PUNISHMENTS.
A PUNISHMENT is simply afflictive when the
object aimed at is to produce immediate tempo
rary suffering, and is so called to distinguish it
from other classes of corporeal punishments in which
the suffering produced is designed to be more per
manent. Simple afflictive punishments are distin
guished from one another by three principal cir
cumstances : the part affected, the nature of the
instrument, and the manner of its application.
* I am sensible how imperfectly the word afflictive is calcu
lated to express the particular kind of punishment I have here
employed it to express, in contradistinction to all others ; but I
could find no other word in the language that would do it better.
It may be some reason for employing it thus, that in French it
is employed in a sense nearly, if not altogether, as confined : f
and the pains it is the nature of the punishments in question to
produce, Cicero expresses by a word of the same root: " Ad-
Jlictatio" (says that orator in his Tusculan Disputations, when he
is defining and distinguishing the several sorts of pain,) " cst
cegritudo cum vexatione corporis. J
+ Causes Cetebres, chap. iv. p. 229. Ed. Arasterd. 1764.
i Lib. iv c. 8.
B.1I. C.I. SIMPLE AFFLICTIVE PUNISHMENTS. 77
To enumerate all the varieties of punishment
which might be produced by the combination of
these different circumstances, would be an useless
as well as an endless task. To enumerate the
several parts of a man s body in which he is liable
to be made to suffer, would be to give a complete
body of anatomy. To enumerate the several in
struments by the application of which he might
be made to suffer, would be to give a complete
body of natural history. To attempt to enumerate
the different manners in which those instruments
may be applied to such a purpose, would be to
attempt to exhaust the inexhaustible variety of
motions and situations.
Among the indefinite multitude of punishments
of this kind that might be imagined and described,
it will answer every purpose if we mention some
of those which have been in use in this and other
countries.
The most obvious method of inflicting this spe
cies of punishment, and which has been most com
monly used, consists in exposing the body to blows
or stripes. When these are inflicted with a flex
ible instrument, the operation is called whipping.
When a less flexible instrument is employed, the
effects are different ; but the operation is seldom
distinguished by another name.
In Italy, and particularly in Naples, there is a
method, not uncommon, of punishing pickpockets,
called the Strappado. It consist in raising the
offender by his arms, by means of an engine like
a crane, to a certain height, and then letting him
fall, but suddenly stopping his descent before he
reaches the ground. The momentum which his
body has acquired in the descent, is thus made to
bear upon his arms, and the consequence generally
is, that they are dislocated at the shoulder : to
78 B. II. C.I. SIMPLE AFFLICTIVE PUNISHMENTS.
prevent the permanent evil consequences, a sur
geon is then employed to reset them.
There were formerly in England two kinds of
punishment of this class, discarded now even from
the military code, in which they were longest
retained. The one called Picketing, which con
sisted in suspending- the offender in such manner
that the weight of his body was supported prin
cipally by a spike, on which he was made to stand
with one foot : the other, the Wooden Horse, as it
was called, was a narrow ledge or board, on which
the individual was made to sit astride ; and the
inconvenience of which was increased by suspend
ing weights to his legs.
Another .species of punishment formerly prac
tised in this country, but now rarely used, con
sisted in subjecting the patient to frequent immer
sions in water, called ducking. The individual
was fastened to a chair or stool, called the duck
ing-stool, and plunged repeatedly. In this case
the punishment was not of the acute, but of the
uneasy kind. The physical uneasiness arises partly
from the cold, partly from the temporary stoppage
of respiration. It has something of the ridiculous
mixed with it, and was most generally applied to
scolding women, whose tongues disturbed their
neighbours. It is a relict of the simplicity of the
olden time. It is still occasionally resorted to,
when the people take the administration of the
laws into their own hands ; and is not uncom
monly the fate of the pickpocket who is detected
at a fair or other place of promiscuous resort.
The powers of invention have been principally
employed in devising instruments for the produc
tion of pain, by those tribunals which have sought
to extort proofs of his criminality from the indivi
dual suspected. They have been prepared for all
fi.II. C.J. SIMPLE AFFLICTIVE PUNISHMENTS. 79
parts of the body, according as they have wished
to stretch, to distort, or to dislocate them. Screws
for compressing the thumbs ; straight boots, for
compressing the shins, with wedges driven in by
a mallet ; the rack, for either compressing or ex
tending the limbs ; all of which might be regulated
so as to produce every possible degree of pain.
Suffocation was produced by drenching, and
was practised by tying a wet linen cloth over the
mouth and nostrils of the individual, and conti
nually supplying it with water, in such manner,
that every time the individual breathed, he was
obliged to swallow a portion of water, till his sto
mach became visibly distended. In the infamous
transactions of the Dutch at Amboyna, Jhis species
of torture was practised upon the English who fell
into their power.
It would be useless to pursue this afflicting
detail any further. How variously soever the
causes may be diversified, the effect is still one
and the same ; viz. organical pain, whether of the
acute or uneasy kind. This effect is common to
all these modes of punishment. There are other
points in which they may differ: 1. One of them
may carry the intensity of the pain to a higher or
lower pitch than it could be carried by another.
2. One may be purer from consequences which,
for the purpose in question, it may or may not be
intended to produce.
These consequences may be 1. The continu
ance of the organical pain itself beyond the time
of applying the instrument 2. The production of
any of those other ill consequences which con
stitute the other kinds of corporeal punishment
3. The subjecting the party to ignominy.
In the choice of punishment, these circumstances,
80 B.IJ. C.I. SIMPLE AFFLICTIVE PUNISHMENTS.
how little soever they are attended to in practice,
are of the highest importance.
It would be altogether useless, not to say mis
chievous, to introduce into the penal code a great
variety of modes of inflicting this species of punish
ment. Whipping the mode which has been most
commonly in use, would, if proper care were, taken
to give to it every degree of intensity, be sufficient,
if it were the only one. Analogy, however, in
certain cases, recommends the employment of
other modes. The multiplication of the instru
ments of punishment, when not thus justified,
tends only to render the laws odious.
Among other works undertaken by order of
the Empress Maria Theresa for the amelioration
of the laws, a description was compiled of the
various methods of inflicting torture and punish
ment in the Austrian dominions. It formed a large
folio volume, in which not only all the instruments
were described, and represented by engravings,
but a detailed account was given of the manipula
tions of the executioners. This book was only
exposed for sale for a few days, Prince Kaunitz,
the prime minister, having caused it to be sup
pressed. He was apprehensive, and certainly not
without reason, that the sight of such a work would
only inspire a horror of the laws. This objection
fell with its whole force upon the instruments
for the infliction of torture, which has since been
abolished in all the Austrian dominions. It is
highly probable that the publication of this work
contributed to produce this happy event. If so,
few books have done more good to the world, if
compared with the time they continued in it.
A valuable service would be rendered to society
by the individual, who, being properly qualified
B.I I. C.I. SIMPLE AFFLICTIVE PUNISHMENTS. 81
for the task, should examine the effects produced
by these different modes of punishment, and should
point out the greater or smaller evil consequences
resulting from contusions produced by blows with
a rope, or lacerations by whips, &c. In Turkey
punishment is inflicted by beating the soles of the
feet. Whether the consequences are more or less
severe, I know not. It is perhaps from some
notion of modesty that the Turks have confined
the application of punishment to this part of the
human body.
If the suffering produced by a punishment of
this class is rendered but little more than momen
tary, it will neither be sufficiently exemplary to
affect the spectators, nor sufficiently efficacious to
intimidate the offenders. There will be little in
the chastisement but the ignominy attached to it ;
and this would have but little effect upon that class
of delinquents upon whom such punishments are
generally inflicted ; the quantity of suffering ought,
therefore, if possible, to be regulated by the laws.
Of all these different modes of punishment,
whipping is the most frequently in use ; but in
whipping not even the qualities of the instrument*
are ascertained by written law : while the quantity
offeree to be employed in its application is altoge
ther intrusted to the caprice of the executioner.
He may make the punishment as trifling or as
* The Chinese, owing perhaps to the extensive use they make
of this mode of punishment, have attempted, by fixing the length
and breadth at the extremities, and weight of the bamboo, to
render uniform the amount of the suffering produced by this
mode of punishment ; but one material circumstance that they
have omitted to regulate, and certainly the most difficult to regu
late, is the degree of force with which the stroke is to be applied ;
an omission that leaves the uncertainty nearly in the same state
as in this country. See the Penal Code of China, translated by
Sir G. T. Staunton, p. 24.
G
82 B. II. C.I. SIMPLE AFFLICTIVE PUNISHMENTS.
severe as he pleases. He may derive from this
power a source of revenue, so that the offender
will be punished, not in proportion to his offence,
but to his poverty. If he has been unfortunate,
and not able to secure his plunder, or honest, and
has voluntarily given it up, and thus has nothing
left to make a sop for Cerberus, he suffers the
rigour perhaps more than the rigour of the law.
Good fortune and perseverance, in dishonesty,
would have enabled him to buy indulgence.
The following contrivance would, in a measure,
obviate this inconvenience : A machine might be
made, which should put in motion certain elastic
rods of cane or whalebone, the number and size of
which might be determined by the law : the body
of the delinquent might be subjected to the strokes
of these rods, and the force and rapidity with
which they should be applied, might be prescribed
by the Judge : thus everything which is arbitrary
might be removed. A public officer, of more re
sponsible character than the common executioner,
might preside over the infliction of the punishment ;
and when there were many delinquents to be
punished, his time might be saved, and the terror
of the scene heightened, without increasing the
actual suffering, by increasing the number of the
machines, and subjecting all the offenders to
punishment at the same time.
SEC. II. EXAMINATION OF SIMPLE AFFLICTIVE
PUNISHMENTS.
The examination of a punishment consists in
comparing it successively with each of the quali
ties which have been pointed out as desirable in a
lot of punishment, that it may be observed in what
degree some are possessed and the others wanted ;
and whether those which it possesses are more
B. II. C.I. SIMPLE AFFLICTIVE PUNISHMENTS. 83
important than those which it wants ; that is to
say, whether it is well adapted for the attainment
of the desired end.
It will be remembered, that the several qualities
desirable in a lot of punishment are variability,
equability, commensurability, characteristicalness,
exemplarity, frugality, subserviency to reforma
tion, efficiency with respect to disablement, sub
serviency to compensation, popularity, and remis-
sibility.
That any species of punishment does not pos
sess the whole of these qualities, is not a sufficient
reason for its rejection: they are not all of equal
importance, and indeed no one species of punish
ment will perhaps ever be found in which they are
all united.
Simple afflictive punishments are capable of
great variability : they may be moderated or in
creased at will. Their effects, however, are far
from equable : the same punishment will not pro
duce the same effects when applied to both sexes,
when applied to a stout young man, and an in
firm old man. These punishments are almost
always attended with a portion of ignominy, and
this does not always increase with the organic
pain, but principally depends upon the condition
of the offender. For this reason, there is scarcely
a punishment of this description which would be
esteemed slight, if inflicted upon a gentleman.
It was inattention to this circumstance that was
one cause of the dissatisfaction occasioned by the
Stat. 10 Geo. Ill, called the Dog Act, passed to
restrain the stealing of Dogs : among the punish
ments appointed was that of whipping. There is
one thing in the nature of this species of property
which renders the stealing of it less incompatible
84 B.II.C,!. SIMPLE AFFLICTIVE PUNISHMENTS.
with the character of a gentleman than any other
kind of theft. It is apt therefore to meet with in
dulgence from the moral sanction, for the same
reason that enticing away a servant is not consi
dered as a crime, on account of the rational qua
lities of the subject of property in these cases.
An individual also may be innocent, notwithstand
ing appearances are against him. A dog is suscep
tible of volition, and even of strong social affec
tions, and may have followed a new master without
having been enticed.
The same inattention has been observed to be
remarkably prevalent throughout the whole system
of penal jurisprudence in Russia. In the reign
which preceded that of the mild and intelligent
Catherine II, neither rank nor sex bestowed an
exemption from the punishment of whipping. The
institutions of Poland were also chargeable with
the same roughness ; and it was no uncommon
thing for the maid of honour of a Polish princess
to be disciplined in public by the Maitre d Hotel.
Nothing more completely proves the degradation
of the Chinese than the whips which are constantly
used by the Police. The mandarins of the first
class, the princes of the blood, are subjected to
the bamboo, as well as the peasant.
The principal merit of simple afflictive punish
ments, is their exemplarity. All that is suffered
by the delinquent during their infliction may be
exhibited to the public, and the class of spectators
which would be attracted by such exhibitions, con
sists, for the most part, of those upon whom the
impression they are calculated to produce would
be most salutary.
Such are the most striking points to be observed
with respect to these punishments. There is little
B.II. C.I. SIMPLE AFFLICTIVE PUNISHMENTS. 85
particular to be remarked under the other heads.
They are of little efficiency as to intimidation or
reformation, with the exception of one particular
species penitential diet; which, well managed,
may possess great moral efficacy. But as this is
naturally connected with the subject of imprison
ment, the consideration of it is deferred for the
present.
86
CHAPTER II.
OF COMPLEX AFFLICTIVE PUNISHMENTS.
UNDER the name of complex afflictive punish
ments, may be included those corporeal punish
ments, of which the principal effect consists in the
distant and durable consequences of the act of
punishment. They cannot be included under one
title. They include three species, very different
the one from the other in their nature and their
importance.
The permanent consequences of an afflictive
punishment may consist in the alteration, the de
struction, or suspension of the properties of a part
of the body.
The properties of a part of the body consist of
its visible qualities, as of colour and figure, and
its uses.
Of these three distinct kinds of punishments,
the first affects the exterior of the person, its visible
qualities : the second affects the use of the organic
faculties, without destroying the organ itself: the
third destroys the- organ itself. *
SEC. I. OF DEFORMATION, OR PUNISHMENTS WHICH
ALTER THE EXTERIOR OF THE PERSON.
It was an ingenious idea in the first legislator
who invented these external and permanently
visible punishments, punishments which are in-
* The first may be included under the general name of Defor
mation, the second under the name of Dishabilitation : they
render the organ impotent and useless. The third has already
a proper name Mutilation.
B.II.CH.II. OF COMPLEX AFFLICTIVE, ETC. 87
flicted without destroying any organ without mu
tilation often without physical pain ; in all cases
without any other pain than what is absolutely
necessary, which affect only the appearance of
the criminal, and render that appearance less
agreeable, which would not be punishments if they
were not indications of his crimes.
The visible qualities of an object are its colour
and figure ; there are therefore two methods of
altering them: 1. Discolouration 2. Disfigura
tion.
1. Discolouration may be temporary or perma
nent. When temporary, it may be produced by
vegetable or mineral dyes. I am not acquainted
with an instance of its use as a punishment. It
has always appeared to me that it might be very
usefully employed as a precaution to hinder the
escape of certain offenders, whilst they are under
going other punishments.
Permanent discolouration might be produced by
tattooing ; the only method at present in use is
branding.*
Tattooing is performed by perforating the skin
with a bundle of sharp-pointed instruments, and
subsequently filling the punctures with coloured
powder. Of all methods of discolouration, this is
the most striking and the least painful. It was
practised by the ancient Picts, and other savage
nations, for the purpose of ornament.
Judicial branding is effected by the application
of a hot iron, the end of which has the form which
* Scarification and corrosion might be employed for the same
purpose. The first is attended with this inconvenience, the
ibrm which the cicatrix will take cannot be determined before
hand ; it may leave none, or an accidental incision may leave
a similar one. Corrosion by chymical caustics may not be liable
to the same inconvenience ; but its effects have not been tried.
88 B.IJ.CH.II. OF COMPLEX AFFLICTIVE
it is desired should be left imprinted on the skin.
This punishment is appointed for many offences in
England, and among other European nations.
How far this mark is permanent and distinct, I
know not ; but every one must have observed that
accidental burnings often leave only a slight cica-
trix a scarcely sensible alteration in the colour
and texture of the skin.
If it is desired to produce deformity, a part of
the body should be chosen which is exposed to
view, as the hand or the face ; but if the object of
the punishment is only to mark a conviction of a
first offence, and to render the individual recog
nisable in case of a relapse, it will be better that
the mark should be impressed upon some part of
the body less ordinarily in view, whereby he will
be spared the torment of its infamy, without taking
away his desire to avoid falling again into the hands
of justice.
2. Disfigurement may in the same manner be
either permanent or transient. It may be per
formed either on the person, or only on its dress.
When confined to the dress, it is not properly
called disfigurement ; but, by a natural association
of ideas, it has the same effect. To this head may
be referred the melancholy robes and frightful
dresses made use of by the Inquisition, to give to
those who suffer in public a hideous or terrible
appearance. Some were clothed in cloaks painted
to represent flames ; others were covered with
figures of demons, and different emblems of future
torments.
Shaving the head has been a punishment for
merly used. It was part of the penance imposed
upon adulterous women by the ancient French
laws.
The Chinese attach great importance to the
B.II. CH.II. PUNISHMENTS. 89
length of their nails ; cutting them might therefore
be used as a penal disfigurement. Shaving the
beard might be thus employed among the Russian
peasants, or a part of the Jews.
The permanent means of disfigurement are more
limited. The only ones which have been in use,
and which may yet be employed in certain coun
tries, were applied to certain parts of the head,
which may be altered without destroying the func
tions which depend on those parts. The common
law of England directs the nostrils to be slit, or
the ears cut off, as the punishment for certain
offences. The first of these punishments has
fallen into disuse : the second has been rarely em
ployed in the last century. In the works of Pope,
and his contemporary writers, may be seen how far
their malignity was pleased by allusions to this
species of punishment, which had been applied to
the author of a libel in their times.
The cutting off and slitting of the nose, the eye
lids, and the ears, were once in common use in
Russia, without distinction of sex or rank. They
were the common accompaniments of the knout
and exile : but it ought to be observed that the
punishment of death was very rare.
SEC. II. OF DISABLEMENT, OR PUNISHMENTS
CONSISTING IN DISABLING AN ORGAN.
To disable an organ is either to suspend or de
stroy its use without destroying the organ itself.
It is not necessary here to enumerate all the
organs, nor all the methods by which they may be
rendered useless. We have already seen that it
would not be useful to have recourse to a great
variety of afflictive punishments, and that there
would be many inconveniences in so doing. If
90 B.II.CH.II. OF COMPLEX AFFLICTIVE
we were to follow the law of retaliation, the cata
logue of possible punishments would be the same
as that of the possible offences of this kind.
i. The visual organ. The use of which may be
suspended by chymical applications, or by mecha
nical means, as with a mark or bandage. The
visual faculty may also be destroyed by chymical
or mechanical means.
No jurisprudence in Europe has made use of
this punishment. It has heretofore been employed
at Constantinople, under the Greek emperors, less
as a punishment, it is true, than as a politic method
of rendering a prince incapable of reigning. The
operation consisted in passing a red hot plate of
metal before the eyes.
ii. The organ of hearing. This faculty may be
destroyed by destroying the tympanum. A tem
porary deafness may be produced by filling the
passage of the ears with wax. As a legal punish
ment, I know of no instance of its use.
in. The organ of speech. Gagging has more
often been employed as a means of precaution
against certain delinquents, rather than as a method
of punishment. -General Lally was sent to his
punishment with a gag in his mouth ; and this
odious precaution perhaps only served to turn
public opinion against his judges, when his cha
racter was re-established. It has sometimes been
employed in military prisons. It has the merit of
analogy, when the offence consists in the abuse of
the faculty of speech.
Gagging is sometimes performed by fixing a
wedge between thd jaws, which are rendered im-
moveable : sometimes by forcing a ball into the
mouth, &c.
iv. The hands and feet. I shall not speak of the
Ii.II.CH.II. PUNISHMENTS. 91
various methods by which these members may be
rendered for ever useless. If it were necessary to
be done, it would not be difficult to accomplish.
Handcuffs are rings of metal, into which the
wrists are thrust, and which are connected toge
ther with a bar or chain. This apparatus com
pletely hinders a certain number of movements,
and might be employed so as to prevent them all.
Fetters are rings of metal, into which the legs
are fixed, united in the same manner by a chain or
bar, according to the species of restraint which it
is desired to produce. Handcuffs and fetters are
often employed conjointly. Universal use is made
of these two methods, sometimes as a punishment,
properly so called, but more frequently to prevent
the escape of a prisoner.
The pillory is a plank fixed horizontally upon a
pivot, on which it turns, and in which plank there
are openings, into which the head and the hands of
the individual are put, that he may be exposed to
the multitude. I say to the gaze of the multitude
such is the intention of the law ; but it not un-
frequently happens, that persons so exposed are
exposed to the outrages of the populace, to which
they are thus delivered up without defence, and
then the punishment changes its nature; its
severity depends upon the caprice of a crowd of
butchers. The victim for such he then becomes
covered with filth, his countenance bruised and
bloody, his teeth broken, his eyes purled up and
closed, no longer can be recognized. The police,
at least in England, used to see this disorder, nor
seek to restrain it, and perhaps would have been
unable to restrain it. A simple iron trellis, in the
form of a cage, placed around the pillory, would,
however, suffice for stopping at least all those
92 13.11. CH.II. OF COMPLEX AFFLICTIVE
missiles which might inflict any dangerous blows
upon the body.
The Carcan, a kind of portable pillory, is a
species of punishment which has been used in
many countries, and very frequently in China, it
consists of a wooden collar, placed horizontally on
the shoulders, which the delinquent is obliged to
carry without relaxation for a longer or shorter
time.
SEC. III. OF MUTILATIONS.
I understand by mutilation, the extirpation of an
external part of the human body, endowed with a
distinct power of movement, or a specific function,
of which the loss is not necessarily followed by
the loss of life : as the eyes, the tongue, the
hands, &c.
The extirpation of the nose and of the ears is
not properly called mutilation, because it is not
upon the external part of these organs that the
exercise of their functions depends ; they protect
and assist that exercise, but they do not exercise
these functions. There is, therefore, a difference
between that mutilation which causes a total loss
of the organ and that which only destroys its
envelope. The latter is only a disfigurement which
may be partly repaired by art.
Everybody knows how frequently mutilations
were formerly employed in the greater number of
penal systems. There is no species of them which
has not been practised in England, even in times
sufficiently modern. The punishment of death
might be commuted for that of mutilation under
the Common Law. By a statute passed under
Henry VIII, the offence of maliciously drawing
blood in the palace, where the king resided, was
punished by the loss of the right hand. By a
B.II. CH.II. PUNISHMENTS. 93
statute of Elizabeth, the exportation of sheep was
punished by the amputation of the left hand.
Since that time, however, all these punishments
have fallen into disuse, and mutilations may now
be considered as banished from the penal code of
Great Britain.
Examination of complex afflictive Punishments.
The effects of simple afflictive punishments are
easily estimated, because their consequences are
all similar in quality, and immediately produced.
The effects of all other punishments are not ascer
tained without great difficulties, because their
consequences are greatly diversified, are liable to
great uncertainty, and are often remote. Simple
afflictive punishments must always be borne by
the parties on whom they are inflicted : all other
punishments are deficient in point of certainty :
the more remote their consequences, the more
these consequences escape the notice of those who
are deficient in foresight and reflection.
Around a simple afflictive punishment a circle
may be drawn, which shall inclose the whole
mischief of the punishment ; around all other
punishments the mischief extends in circles, the
extent of which is not, and cannot be marked out.
It is mischief in the abstract, mischief uncertain
and universal, which cannot be pointed out with
precision. When the effects of punishments are
thus uncertain, there is much less ground for
choice, for the effects of one punishment may be
the same with those of another. The same con
sequences often resulting from very different
punishments. The choice must therefore be
directed by probability, and be governed by the
presumption that certain punishments will more
94 B.II. CH.II. OF COMPLEX AFFLICTIVE
probably produce certain penal consequences than
any other.
Independently of the bodily sufferings resulting
from them, punishments which affect the exterior
of the person, often produce two disadvantageous
effects, the one physical the individual may be
come an object of disgust ; the other moral he
may become an object of contempt ; they may pro
duce a loss of beauty or a loss of reputation.
One of these punishments, which has a greater
moral than physical effect, is a mark producing
only a change of colour, and the impression of a
character upon the skin ; but this mark is an
attestation that the individual has been guilty of
some act to which contempt is attached, and the
effect of contempt is to diminish goodwill, the
principle that produces all the free and gratuitous
services that men render to one another ; but in
our present state of continual dependance upon
each other, that which diminishes the goodwill
of others towards us, includes within itself an in
definite multitude of privations.*
When such a mark is inflicted on account of a
crime, it is essential that a character should be
Stedman relates a fact which proves what has been above
said of the indefinite consequences of these punishments. Speak
ing of a Frenchman, named Destrades, who had introduced the
culture of Indigo into Surinam, and who, during many years,
had enjoyed general esteem in that colony. He states, that
being at the house of one of his friends in Demerara, he became
ill of an abscess, which formed in his shoulder. He would not
suffer it to be examined : it became dangerously worse, but his
resistance remained still the same : at last, not hoping for a
cure, he put an end to his life with a pistol-ball, when the
secret was revealed, it was found that his shoulder was marked
with a letter V, or Voleur. Narrative of an Expedition against
the Revolted Negroes of Surinam, by Major Stedman, chap, xxvii.
B.1I. CH.II. PUNISHMENTS. 95
given to it, which shall clearly announce the in
tention with which it was imposed, and which
cannot be confounded with cicatrices of wounds
or accidental marks. A penal mark ought to have
a determinate figure and the most suitable, as
well as the most common, is the initial letter of
the name of the crime. Among the Romans,
slanderers were marked on the forehead with the
letter K. In England, for homicide, committed
after provocation, offenders were marked in the
hand with the letter M (for manslaughter), and
thieves with the letter T. In France, the mark
for galley-slaves was composed of the three
letters GAL.
In Poland, it was the custom to add a symboli
cal expression : the initial letter of the crime was
enclosed in the figure of a gallows. In India,
among the Gentoos, a great number of burlesque
symbolical figures are employed.
A more lenient method, which may be referred
to the same head, is a practice too little used, of
giving to offenders a particular dress, which serves
as a livery of crime. At Hanare, in Germany,
persons condemned to labour on the public works
were distinguished by a black sleeve in a white
coat. It is an expedient which has for its object
the prevention of their escape ; as a mark of in
famy, it is an addition to the punishment.
On the score of frugality, deforming punish
ments are not liable to any objection; disablement
and mutilation are ; if the effect of either is to
prevent a man getting his livelihood by his own
labour, and he has no sufficient income of his
own, he must either be left to perish, or be sup
plied with the means of subsistence ; if he were
left to perish, the punishment would not be mere
disablement or mutilation, but death. If he be
96 B. II. CH. II. OF COMPLEX AFFLICTIVE
supported by the labour of others, that labour
must either be bestowed gratis, as would be the
case if he were supported on the charity of rela
tions and friends, or paid for, at public cost ; in
either case it is a charge upon the public. This
consideration might of itself be considered a con
clusive objection against the application of these
modes of punishment, for offences that are apt to
be frequently committed, such as theft or smug
gling ; the objection applies, however, in its full
force, to such of these modes of punishment only
as have the effect of depriving the particular indi
vidual in question of the means of gaining his
livelihood.
In respect of remissibility, they are also emi
nently defective ; a consideration which affords
an additional reason for making a very sparing
use of them.
In respect also of variability, these punishments
are scarcely in a less degree defective. The loss
of the eyes, or of the hand, is not to a man who
can neither read or write, the same degree of
punishment as it would be to a painter, or an
author. Yet, however different in each instance
may be the degree of suffering produced by the
mass of evil to which the infliction of the punish
ment in question gives birth, all who are subject
to it will find themselves more or less affected ; of
these inequalities, and therefore of the aggregate
amount of the punishment in each particular in
stance, it is impossible to form any estimate ; it
depends on the sensibility of the delinquent, and
other circumstances, which cannot be foreseen.
By a slothful man, the loss of a hand might not
be regarded as a very severe punishment, it has
not been uncommon for men to mutilate or dis
able themselves to avoid serving in the army.
B.1I.CH.II. PUNISHMENTS. 97
In point of variability, the several classes of
punishment now before us, when considered all to
gether, are not liable to much objection ; there is a
gradation from less to more, which runs through
the whole of them. The loss of one finger is less
painful than the loss of two, or of the whole hand.
The loss of the hand is less than the loss of an arm.
But when these punishments are considered singly,
the gradation disappears. The particular mutila
tion directed by the law, can neither be increased
or diminished, that it may be accommodated to
the different circumstances of the crime or of the
delinquent. This objection recurs again under
the head of Equability. The same nominal punish
ment will not always be the same real punishment.
In respect of exemplarity, the punishments in
question possess this property in a higher degree
than simple afflictive punishments, this latter spe
cies of punishment not being naturally attended
with any distant consequences (their infamy ex-
cepted), the whole quantity of pain it is calculated
to produce is collected, as it were, into a point,
and exposed at once to the eyes of the spectator ;
while of the other, on the contrary, the conse
quences are lasting, and are calculated perpetually
to awaken in the minds of all, to whose eyes any
person that has suffered this species of punishment
may happen to present himself, the idea of the law
itself, and of the sanction by which its observance
is enforced. For this purpose it is necessary, how
ever, as has been already observed, that the penal
mark should be such as at first glance to be dis
tinguished from any mark that may have been the
result of accident that misfortune may be pro
tected from the imputation of guilt.
The next property to be desired in a mode of
punishment, is subserviency to reformation. In
98 B.Il.C.ll. OF COMPLEX AFFLICTIVE, ETC.
this respect the punishments under consideration,
when temporary, have nothing in themselves that
distinguishes them from any other mode of punish
ment ; their subserviency to reformation is as their
experienced magnitude. It is the infamy attend
ant on them that gives them those effects which
are apt in this respect to distinguish them to their
disadvantage.
Infamy, when at an intense pitch, is apt to have
this particular bad effect : it tends pretty strongly
to force a man to persist on that depraved course
of life by which the infamy was produced. When
a man falls into any of those offences that the
moral sanction is known to treat with extreme
rigour, men are apt to suppose that the moral
sanction has no hold upon him. His character,
they say, is gone. They withdraw from him their
confidence and goodwill. He finds himself in a
situation in which he has nothing to hope for from
men, and for the same reason nothing to fear : he
experiences the worst already. If, then, he de
pend upon his labour for subsistence, and his
business is of such sort as requires confidence to
be reposed in him, by losing that necessary por
tion of confidence he loses the means of providing
himself with subsistence, his only remaining re
sources are then mendicity or depredation.
From these observations it follows, that mutila
tion ought to be reserved as punishments for the
most mischievous offences, and as an accompani
ment of perpetual imprisonment. An exception to
this rule may perhaps be found in the case of rape,
for which analogy most strongly recommends a
punishment of this kind.
CHAPTER III.
OF RESTRICTIVE PUNISHMENTS TERRITORIAL
CONFINEMENT.
RESTRICTIVE punishments are those which re-
strain the faculties of the individual, by hindering
him from receiving agreeable impressions, or from
doing what he desires. They take from him his
>erty with respect to certain enjoyments and
certain acts.
Restrictive punishments are of two sorts, accord
ing to the method used in inflicting them. Some
)erate by moral restraint, others by physical re
straint. Moral restraint takes place when the
motive presented to the individual to hinder him
from doing the act which he wishes to perform is
niy the fear of a superior punishment; for, in
der to be efficacious, it is necessary that the
punishment with which he is threatened, must be
greater than the simple pain of submitting to the
restraint imposed upon him.
The punishment of restraint is applicable to all
sorts of actions in general, but particularly to the
faculty of loco-motion. Everything which restrains
the locomotive faculty, confines the individual,
that is to say, shuts him up within certain limits,
and may be called territorial confinement.
In this kind of punishment the whole earth, in
relation to the delinquent, is divided into two very
unequal districts ; the one of which is open to him
and the other interdicted.
If the place in which he is confined is a narrow
100 B.II. C.III. OF RESTRICTIVE PUNISHMENTS.
space surrounded with walls, and the doors of
which are locked, it is imprisonment.
If the district in which he is directed to remain
is within the dominions of the state, the punish
ment may be called Relegation. If it is without
the dominions of the state, the punishment is called
Banishment.
The term relegation seems to imply, that the
delinquent is sent out of the district in which he
ordinarily resides. This punishment may consist
in his confinement in that district where he ordina
rily resides, and even in his own house. It may
then be called quasi imprisonment.
If it refers to a particular district, which he is
prohibited from entering, it is a sort of exclusion,
which has not yet a proper name, but which may
be called local interdiction.
Territorial confinement is the genus which in
cludes five species : imprisonment, quasi impri
sonment, relegation, local interdiction, and banish
ment.
CHAPTER IV.
IMPRISONMENT.
IMPRISONMENT makes a much more extensive
figure than any other kind of hardship that can be
inflicted in the way of punishment. Every other
kind of hardship (death alone excepted) may be
inflicted for two purposes punishment and com
pulsion. Imprisonment, besides these two pur
poses, may be employed for another. Safe cus
tody ; when thus employed, it is not a punishment,
properly so called. It is intended only to ensure
the forthcomingness of an individual suspected of
having committed an offence, that he may be pre
sent to undergo the punishment appointed for that
offence, if he be found guilty. When thus em
ployed, it ought not to be more severe than is
necessary to insure forthcomingness. Whatever
exceeds this, is so much misery in waste.
When imprisonment is intended to operate as a
punishment, it may be rendered more or less severe,
according to the nature of the offence and the con
dition of the offender. It may be accompanied by
forced labour, which may be imposed upon all ;
but it ought not to be so imposed without reference
to the age, the rank, the sex, and the physical
powers of the individuals. Other punishments,
which may be employed in addition to hard labour,
and of which we shall have occasion to speak in a
future chapter, are diet, solitude, and darkness.
When imprisonment is inflicted for the purpose
of compulsion, the severer it is, the better, and that
for various reasons.
102 B.II.CH.IV. IMPRISONMENT.
, When it is protracted, but slight, the danger is
that the prisoner may come by degrees to accom
modate himself to it, till at last it ceases in a man
ner to operate upon him. This is found not un
commonly to be the case with insolvent debtors.
In many of our gaols there are so many comforts
to be had by those who have money to purchase
them, that many a prisoner becomes in time tole
rably well reconciled to his situation. When this
is the case, the imprisonment can no longer be of
use in any view.
The severer it is, I mean all along in point of
intensity, the less of it, in point of magnitude, will
be consumed upon the whole ; that is, in point of
intensity and duration taken together ; the more
favourable, in short, will it be to the sufferer : it
will produce its effects at a cheaper rate. The
same quantity of painful sensations, which, under
the milder imprisonment, are diffused through a
large mass of sensations, indifferent or pleasurable,
being, in the severer imprisonment, brought toge
ther, will act with collected force, and produce a
stronger impression : the same quantity of pain
will therefore go farther this way than in any other.
Add to this, that in this way the same quantity of
suffering will not have so pernicious an influence
on his future life. In the course of a tedious con
finement, his mental faculties are debilitated, his
habits of industry are weakened, his business runs
into other channels, and many of those casual
opportunities which might have afforded the means
of improving his fortune, had he been at liberty to
embrace them, are irrecoverably gone. These evils,
which, though they may come eventually to be felt,
are too distant and contingent to contribute any
thing beforehand to the impression it is intended
to produce, are saved by placing the magnitude of
13. II, CH.1V. -IMPRISONMENT. 1Q3
the punishment in intensity rather than in du
ration.
By the fundamental constitution of man s nature
without anything being done by any one to pro
duce a change in his situation, if left to himself, in
a situation in which he is debarred from exercising
the faculty of loco-motion, he will in a short time
become a prey to various evils, to the action of
various causes producing various organical pains
which, sooner or later, are sure to end ultimately
in death. If duration and neglect be added to im
prisonment, it necessarily becomes a capital punish
ment. Since, therefore, it is followed by an in
finite variety of evils which the individual is unable
himself to guard against, and against which pre
cautions must be taken by others to preserve him,
it follows, that to form a just notion of imprison
ment, it must be considered, not simply by itself
but in common with different modes and conse
quences. We shall then see that, under the same
name, very different punishments may be inflicted.
Under a name which presents to the mind only
the single circumstance of confinement in a par
ticular place, imprisonment may include every
possible evil ; from those which necessarily follow
m its train, rising from one degree of rigour to
another, from one degree of atrocity to another
till it terminates in a most cruel death ; and this
without being intended by the legislator, but alto
gether arising from absolute negligence ne<rli-
gence as easy to be explained as it is difficult to
be palliated.
We shall class under three heads the penal cir
cumstances which result from this condition
1. Necessary inconveniences, which arise from the
condition of a prisoner, and which form the essence
imprisonment. 2. Accessory inconveniences
104 B.II. CH.IV. IMPRISONMENT.
which do not necessarily, but which very fre
quently follow in its train. 3. Inconveniences
arising from abuses.
I. Negative evils, inseparable from imprisonment.
1. Privation of the pleasures which belong to
the sight, arising from the diversity of objects in
town and country.
2. Privation of the liberty of taking pleasurable
exercises that require a large space, such as riding
on horseback or in a carriage, hunting, shoot
ing, &c.
3. Privation of those excursions which may be
necessary even for health.
4. Privation of the liberty of partaking of public
diversions.
5. Abridgment of the liberty of going out to
enjoy agreeable society, as of relations, friends, or
acquaintance, although they should be permitted
to come to him.
6. Privation of the liberty, in some cases, of
carrying on business for a livelihood, and abridg
ment of such liberty in all cases.
7. Privation of the liberty of exercising public
offices of honour or trust.
8. Privation of accidental opportunities of ad
vancing his fortune, obtaining patrons, forming
friendships, obtaining a situation, or forming matri
monial alliances for himself or children.
Although these evils may in the first instance
be purely negative, that is to say, privation of
pleasures, it is evident that they bring in their
train of consequences positive evils, such as the
impairing of the health and the impoverishment of
the circumstances.
B.II. CH.IV. IMPRISONMENT. 105
II. Accessory evils, commonly attendant on the con
dition of a prisoner.
1. Confinement to disagreeable diet. The want
of sufficient food for the purpose of nourishment, is
a distinct mischief, which will come under another
head.
2. Want of comfortable accommodations for re
pose : hard bedding, or straw, or nothing but the
bare ground. This hardship alone has been
thought to have been productive, in some instances,
of disease, and even death.
3. Want of light. By the exclusion of the
natural light of the sun by day, and the not fur
nishing or not permitting the introduction of any
artificial means of producing light by night.
4. Total exclusion from society. This evil is
carried to its height when a prisoner is not per
mitted to see his friends, his parents, his wife, or
his children.
5. Forced obligation of mixing with a promis
cuous assemblage of his fellow prisoners.*
6. Privation of the implements of writing, for
* This inconvenience would be apt to be attended with effects
of the most serious nature in the case of an Hindoo of any of
the superior castes; an association, however involuntary, with
persons of an inferior rank, or contaminated character, causing
a forfeiture of caste, which, among the Hindoos, is productive
of the same afflictions as excommunication at its first institution
was intended to produce amongst Christians extreme infamy,
and an utter exclusion from society, but that of persons marked
with the same stigma. It has been said, I hope without truth,
that by some unhappy neglect, when the Rajah Nuncomar, a
man of the first rank in Bengal, was in custody for the forgery
for which he was afterwards tried under the laws of Great Bri
tain, and executed, proper care was not taken to protect him
from this ideal contamination. If this be true, before he was
proved guilty, he was made to suffer a punishment greater per
haps than that to which he was afterwards sentenced.
10G B.II. CH. IV. IMPRISONMENT.
the purposes of correspondence. A useless seve
rity, since everything which is written by a pri
soner may be properly submitted to inspection.
If ever this privation is justifiable, it is in cases of
treason and other party crimes.
7. Forced idleness, by the refusal of all means
of necessary occupation : as of the brushes of a
painter, the tools of a watchmaker, or of books,
&c. This has sometimes been carried to such a
degree of rigour as to deprive prisoners of all
amusement.
These different evils, which are so many positive
evils in addition to the necessary evils of simple
imprisonment, may be useful in penal and peni
tential imprisonment. We shall hereafter shew in
what manner they ought to be used. But with
respect to the fifth evil, the forced obligation of
mixing with a promiscuous assemblage of pri
soners, it is always an evil, and an evil which
cannot be obviated without a change in the system
and construction of prisons.
We proceed to the consideration of evils purely
abusive : of those which exist only by the negli
gence of the magistrates, but which necessarily
exist, where precautions have not been taken to
prevent their existence. We shall present two
catalogues ; one of the evils, the second of their
remedies.
Evils. Remedies.
1. . 1.
Pains of hunger and thirst : Sufficient nourishment.
general debility death. f
2. 2.
Sensation of cold in various Sufficient clothing, adapted
degrees of intensity : stoppage to the climate and the season
of the circulation mortification fire.
of the extremities * death.
* Howard, p. 39.
B. II. CH. IV. IMPRISONMENT.
107
Evils.
3.
Sensation of heat : habitual
debility death.
4.
Sensation of damp and wet
ness : fevers and other disorders
death.
5.
Noisome smells, collections
of putritiable matter : habitual
debility -falling off of the mem
bers by gangrene gaol-fever
contagious diseases death.
6.
Pain or uneasiness resulting
from the bites of vermin : cuta
neous diseases want of sleep
debility inflammation fever
death.
7.
Various diseases.
Painful sensations arising
from indelicate practices.
9.
Tumultuous noises inde
cent practices indelicate con
versations.
10.
Evils resulting from the re
ligious sanction from the
non-exercise of the ceremonies
prescribed by it.
Remedies.
3.
Shelter from the sun in hot
weather fresh air.
4.
The ground everywhere co
vered with boards, or bricks,
or stone fresh air tubes for
conveying heated air.
5.
Fresh air change of clothes
water and other implements
of washing fumigations
whitewashing the walls medi
cines and medical assistance.
6.
Chymical applications to de
stroy them cleanliness a
person with proper implements
for their destruction and re
moval.
7.
Medicines and medical ad
vice.
8.
Partitions to keep the pri
soners separate during the hour
of rest, at least those of the
one sex from those of the other.
9.
Keepers to be directed to
punish those guilty of such
practices. The punishment to
be made known to the prisoners
by being fixed up in the prison.
10.
In Protestant countries, a
chaplain to perform divine
service. In Roman Catholic
countries, a priest to perform
mass, and to confess the pri
soners, &c. *
* It was mentioned as a circumstance of peculiar distress attending the fate
of many of the numerous state prisoners confined in Portugal during the Mar
quis of Pombal s administration, their being debarred, during a course of years,
the comforts of confession. When this circumstance was brought to light, it
produced a considerable degree of public indignation.
108
CHAPTER V.
IMPRISONMENT FEES.
ANOTHER way in which a man is often made to
suffer on the occasion of imprisonment, is the
being made to pay money under the name of fees.
This hardship, on the very first inspection, when
deduced as a consequence from a sentence or
warrant of imprisonment, can be classed under no
other title than that of an abuse ; for naturally it
has just as much to do with imprisonment as
hanging has.
This abuse is coeval with the first barbarous
rudiments of our antient jurisprudence ; when the
magistrate had little more idea of the ends of
justice than the freebooter ; and the evils he
inflicted were little more than a compensation for
the evils he repressed. In those times of univer
sal depravity, when the magistrate reaped almost
as much profit from the plunder of those who
were, or were pretended to be, guilty, as from the
contributions of those who were acknowledged
innocent ; no pretext was too shallow to cover the
enterprises of rapacity under the mask of justice.
All the colour which this abuse is capable of
receiving, seems to have been taken from a
quibbling and inhuman sarcasm. " Since you
have lodging found you," says the gaoler to the
prisoner, " it is fit, like other lodgers, you should
pay for it." Fit it certainly would be, if the
lodger came there voluntarily ; the only circum-
B. II. CH.V. IMPRISONMENT FEES. 109
stance in the case which is wanting to make it a
just demand instead of a cruel insult.
But the gaoler, like every other servant of the
state, it will be said, and with perfect truth, must
be satisfied for his trouble ; and who more fit than
the person who occasions it ? I answer any person
whatever ; if contrary to the most obvious princi
ples of justice, some one person must bear the
whole charge of an institution, which if beneficial
to any, is beneficial to all. I say anybody ;
because there is no person whose clear benefit
from the punishment of the criminal (I am speak
ing here of the judicial, appointed punishment, the
imprisonment ; and I mean clear benefit after
inconvenience has, been deducted) is not greater
than the criminals. This would hold good were
the peculiar circumstances of the criminal out of
the question ; but when these come to be con
sidered, they add considerable force to the above
conclusion. In the case of nineteen delinquents
out of twenty, the utter want of all means of satis
fying their lawful debts was the very cause and
motive to the crime. Now then, whereas it is
only possible in the case of a man taken at ran
dom that he has not wherewithal to pay, it is
certain that in nineteen cases out of twenty the
delinquent has not.
So powerful is the force of custom, that for a
long series of years, Judges of the first rank, and
country magistrates, none of whom but would
have taken it ill enough to have had their wisdom
or their humanity called in question, stand upon
record as having given their allowance to this
abuse. If any one of these magistrates had ever
had the spirit to have refused this allowance, the
gaoler would for a moment have remained unpaid,
and from thenceforward the burthen would have
110 13. II. CH.V. IMPRISONMENT FEES.
been taken up by that public hand which, from
the beginning, ought to have borne it.*
So far is this hardship from being justifiable on
the score of punishment, that in most, if not in all
our prisons, it is inflicted indiscriminately on all
who enter, innocent or guilty. It is inflicted at all
events, when it is not known but they may be
innocent: for it is inflicted on them at first
entrance when committed only for safe custody.
This is not all ; it is inflicted on men after they
have been proved to be innocent. Even this is
not all ; to fill up the measure of oppression, it is
inflicted on them because they have been proved
innocent. Prisoners, after they have been ac
quitted, are, as if to make them amends for the
unmerited sufferings they have undergone, loaded
with a heavy fine, professedly on the very ground
of their having been acquitted. In some gaols, of
person acquitted of murder a sum of money is
exacted, under the name of an acquittal, equal to
what it costs an ordinary working man to maintain
himself for a quarter of a year : a sum such as
not one man in ten of that class, that is, of tne
class which includes a great majority of the whole
people, is ever master of during the course of his
whole life.
* By the old law, when money was recovered against a Hun
dred, the Sheriff laid hold of the first Hundredor he met, and
made him pay the whole. Even this was a better expedient
for providing for the public burthen than the one in question.
Ill
CHAPTER VI.
IMPRISONMENT EXAMINED.
WE now proceed to examine the degree in which
imprisonment possesses the several properties
desirable in a lot of punishment.
1. Imprisonment possesses the property of
efficacy with respect to disablement in great perfec
tion. The most dangerous offender, so long as
his confinement continues, is deprived of the
power of doing mischief out of doors; his vicious
propensities may continue at their highest pitch,
but he will have no opportunity of exercising
them.
2. Imprisonment is generally exceptionable on
the score of frugality ; none of the inconveniences
resulting from it being convertible to profit. It is
also generally accompanied with expense, on ac
count of the maintenance of the persons confined.
In these calculations of expense, that loss ought
not to be forgotten which results from the suspen
sion of the lucrative labours of the prisoner, a
loss which is often continued beyond the period
of his imprisonment, owing to the habits of idle
ness it has induced.*
3. Imprisonment is objectionable in respect of
equality. If we recur to the catalogue of priva
tions of which it consists, it will be seen that the
inequality is extreme, when one prisoner is sickly,
* This objection to imprisonment is carefully removed in the
plan of Panopticon Imprisonment, an account of which is given
in Book V, ch. 3.
112 B.II. CH.VI. IMPRISONMENT EXAMINED.
and the other healthy ; when one is the father of
a family, and the other has no relations ; when
the one is rich and accustomed to all the enjoy
ments of society, and the other poor, and his
usual condition is one of misery.
One party may be deprived of his means of
subsistence ; another may be scarcely affected in
this respect. It may be said, is not this loss
merely temporary ? May it not be considered as
a forfeiture which forms a part of the punish
ment? If the individual belong to a profession,
the exercise of which cannot be interrupted wi*h-
out great risk of its total loss ; the consequence
may be his absolute r n n. This is one of those
cases iu which a latitude/niaj^ properly be left to
the Judge of commuting this punishment for
another. A pecuniary punishment may frequently,
with propriety, be substituted. The greater num
ber of offenders, however, are not in a condition to
furnish this equivalent. It would therefore be
necessary to have recourse to simply afflictive
punishments. The degree of infamy attached to
these punishments would, however, not be an
objection in case the offender consented to the
exchange ; and this consent might be made a
necessary condition.
Among the inconveniences which may be at
tached to imprisonment, there is one which is
particularly inequable. Take away paper and
ink from an author by profession, and you take
away his means of amusement and support. You
would punish other individuals, more or less, ac
cording as a written correspondence happened to
be more or less necessary for their business or
pleasure. A privation so heavy for those whom it
affects, and at the same time so trifling for the
greater number of individuals, ought not to be
B.TI. CH.VI. IMPRISONMENT EXAMINED. 113
admitted in quality of a punishment. Why
should an individual who has received instruction
in writing, be punished more than another. This
circumstance ought rather to be a reason for
indulgence; his sensibility has been augmented
by education ; and the instructed and cultivated
man will suffer more from imprisonment than the
ignorant and the clownish.
On the other hand, though the punishment of
imprisonment is inequable, it should be observed,
that it naturally produces an effect upon every one.
There is no individual insensible to the privation
of liberty to the interruption of all his habits, and
especially of all his social habits.
4. Imprisonment is eminently divisible with
respect to its duration. It is also very susceptible
of different degrees of severity.
5. Under the present system, the exemplarity
of imprisonment is reduced to the lowest term. In
the Panopticon, the facility afforded to the admis
sion of the public, adds much to this branch of its
utility.
However, if the prisoners are not seen, the pri
son is visible. The appearance of this habitation
of penitence may strike the imagination and
awaken a salutary terror. Buildings employed
for this purpose ought therefore to have a character
of seclusion and restraint, which should take away
all hope of escape, and should say, " This is the
dwelling place of crime."
6. Simplicity of description. Under this head
there is nothing to be desired. This punishment
is intelligible to all ages, and all capacities. Con
finement is an evil of which everybody can form
an idea, and which all have, more or less, experi
enced. The name of a prison at once recalls the
ideas of suffering as connected with it.
114 B.II. CH.VI. IMPRISONMENT EXAMINED.
Let us here stop to examine three auxiliary
punishments, that under special circumstances,
and for a limited time only, may be usefully made
to accompany afflictive imprisonment. These
auxiliaries are solitude, darkness, and hard diet.
Their distinguishing merit consists in their sub
serviency to reformation.
That the three hardships, thus named, have a
peculiar tendency to dispose an offender to peni
tence, seems to be the general persuasion of man
kind. The fact seems to be pretty generally
acknowledged ; but the reasons are not altogether
obvious, nor do they seem to be very explicitly
developed in the minds of those who show them
selves strenuously convinced of the fact. An
imperfect theory might naturally enough induce one
to deny it. " What is it," it may be said, " that
is to produce in the offender that aversion to his
offence which is stiled penitence ? It is the pain
which he experiences to be connected with it.
The greater then that pain, the greater will be his
aversion ; but of what kind the pain be, or from
what source it issues, are circumstances that make
no difference. Solitude, darkness, and hard diet,
in virtue of a certain quantity of pain thus pro
duced, will produce a certain degree of aversion
to the offence ; be it so. But whipping, or any
other mode of punishment that produced a greater
pain, would produce a stronger aversion. Now,
the pain of whipping may be carried to as high a
pitch as the pain produced by this group of hard
ships altogether. In what respect then can these
have a greater tendency to produce penitence
than whipping ?"
The answer is, that the aversion to the offence
depends, not merely upon the magnitude of the
pain that is made to stand connected with it ; but
B.I1.CU.VI. IMPRISONMENT EXAMINED. 115
it depends likewise upon the strength of the con
nection which is made to take place between
those two incidents in the patient s mind. Now
that solitude, darkness, and hard diet have a
greater tendency than any other kind of hardship
to strengthen this connection, I think, may be
satisfactorily made out.
Acute punishment, such as whipping, at the
time it is inflicted, leaves no leisure for reflection.
The present sensation, with the circumstances that
accompany it, is such as engrosses the whole
attention. If any mental emotion mixes itself
with the bodily sensation, it will rather be that of
resentment against the Executioner, the Judge,
the Prosecutor, or any person whose share in the
production of the suffering happens to strike the
sufferer most, than any other. The anguish is
soon over, and as soon as it is over, the mind of
the patient is occupied in the eager pursuit of
objects that shall obliterate the recollection of the
pain that he has endured ; while all the objects by
which he is surrounded contribute to repel those
salutary reflections upon which his reformation
depends. Indeed, as soon as the anguish is over,
a new emotion presents itself, an emotion of joy
which the patient feels at the reflection that his
suffering is over.
The gradual and protracted scene of suffering
produced by the combination of punishments we are
now considering, is much more favourable to the
establishment of the wished for effect. By solitude a
man is abstracted from those emotions of friendship
or enmity which society inspires, from the ideas of
the objects their conversation is apt to bring to
view : from the apprehension of the disagreeable
situations their activity threatens to expose him
116 B.II. CH.VI. IMPRISONMENT EXAMINED.
to, or the pleasures in which they solicit him to
engage. By confinement he is abstracted from all
external impressions but such as can be afforded
him by the few and uninviting objects that con
stitute the boundaries, or compose the furniture, of
a chamber in a prison, and from all ideas which,
by virtue of the principle of association, any other
impressions are calculated to suggest.
By darkness, the number of the impressions he is
open to is still further reduced, by the striking off
all those which even the few objects in question are
calculated to produce upon the sense of sight.
The mind of the patient is, by this means, re
duced, as it were, to a gloomy void ; leaving him
destitute of all support but from his own internal
resources, and producing the most lively impres
sion of his own weakness.
In this void, the punishment of hard diet comes
and implants the slow but incessant and corroding
pain of hunger ; -while the debility that attends
the first stages of it, (for the phrensy that is apt to
accompany the last stages is to be always
guarded against) banishes any propensity which
the patient might have left, to try such few means
of activity as he is left undeprived of, to furnish
himself with any of the few impressions he is still
open to receive. Meantime, that pain and this
debility, however irksome, are by no means so
acute as to occupy his mind entirely, and prevent
altogether its wandering in search of other ideas.
On the contrary, he will be forcibly solicited to
pay attention to any ideas which, in that extreme
vacancy of employment, are disposed to present
themselves to his view.
The most natural of all will be to retrace the
events of his past life; the bad advice he received,
B.II. CH.VI. IMPRISONMENT EXAMINED. JlTi
his first deviations from rectitude, which have led.
to the commission of the offence for which he is at
the time undergoing punishment ; a crime, all the
pleasures derived from which have been already
reaped, and of which all that remains is the melan
choly suffering that he endures. He will recall
to his recollection those days of mlf6cence~~Ttnd
security ^EIctL were .formerly his lot, and whicfrp
contrasted with his present wretchedness, will"
present themselves to his imagination with an
increased and factitious degree of splendour. His
penitent reflections will naturally be directed to
the errors of which he has been guilty : if he has
a wife, or children, or near relations, the affection
that he once entertained for them, may be renewed
by the recollection of the misery that he has occa
sioned them.
Another advantage attendant on this situation,
is, that it is peculiarly fitted to dispose a man to
listen with attention and humility to the admoni
tions and exhortations of religion. Left in this
state of destitution in respect of all external plea
sures, religious instructions are calculated to take
the stronger hold of his mind. Oppressed by the
state of wretchedness in which he finds himself,
and by the unlooked-for or unknown events that
have led to the detection of his crime, the more he
reflects upon them, the more firmly will he be
convinced of the existence of a providence which
has watched over his actions, and defeated his
best concerted contrivances. The same God that
punishes him, may also save him ; and thencefor
ward the promises of eternal bliss or torment will
more anxiously engage his attention promises of
happiness in another state of being, in case of
repentance, and denunciations of torments pre
pared for the guilty in the regions of eternal night,
118 B.II. CH.VI. IMPRISONMENT EXAMINED.
of which his present situation seems a prelude and
a foretaste, will fix his regard. In a frame of mind
such as this, to turn a deaf ear to the admonitions
and consolations afforded by religion, a man must
be very different from the ordinary caste of men.
Darkness, too, has, in circumstances like this, a
peculiar tendency to dispose men to conceive, and
in a manner to feel, the presence of invisible agents.
Whatever may be the reason, the fact is notorious
and undisputed. When the external senses are
restrained from action, the imagination is more
active, and produces a numerous race of ideal
beings. In a state of solitude, infantine super
stitions, ghosts, and spectres, recur to the imagi
nation. This, of itself, forms a sufficient reason for
not prolonging this species of punishment, which
may overthrow the powers of the mind, and pro
duce incurable melancholy. The first impressions
will, however, always be beneficial.
If, at such a time, a minister of religion, quali
fied to avail himself of these impressions, is intro
duced to the offender thus humiliated and cast
down, the success of his endeavours will be almost
certain, because in this state of abandonment he
will appear as the friend of the unfortunate, and
as his peculiar benefactor.
This course of punishment, thus consisting of
solitude, darkness, and hard diet, is, as has been
observed, when embodied, a sort of discipline too
violent to be employed, except for short periods :
if greatly prolonged, it would scarcely fail of pro
ducing madness, despair, or more commonly a
stupid apathy. This is not, however, the place
for fixing the duration of the punishment proper
for each species of offence : it ought to vary accord
ing to the nature of the offence, the degree of
obstinacy evinced by the offender, and the symp-
B. II. CH.VI. IMPRISONMENT EXAMINED. 119
toms of repentance which he exhibits. What has
been already said, is sufficient to shew that the
mass of punishments in question may be employed
with the greatest advantage simultaneously : they
mutually aid each other. In order to produce
the desired effect most speedily, even the sort of
food allowed may be rendered unpalatable as well
as scanty, otherwise there would be danger lest
to a young and robust person the constantly-recur
ring gratification afforded to the palate, might ren
der him insensible to the loss of all other plea
sures.
If any punishment can in itself be popular, this,
I think, promises to be so. It bears a stronger
resemblance than any other to domestic discipline.
The tendency which it has to lead the offender to
acknowledge the evil of his offence, and the jus
tice of his sentence, is the same which an indul
gent father desires his punishments to possess,
when he inflicts them upon his children ; and there
is no aspect which it is more desirable the law
should assume than this.
The effects produced by solitary confinement,
are not matters of mere conjecture ; they have
been ascertained by experience, and are reported
upon the best authorities.
Speaking of the cells in Newgate, " I was
told," says Mr. Howard,* " by those who attended
me, that criminals who had affected an air of bold
ness on their trial, and appeared quite unconcerned
at the pronouncing sentence upon them, were
struck with horror, and shed tears, when brought
to these darksome, solitary abodes.".
" I remember an instance," says Mr. Hanway,f
" some years before the law for proceeding to sen-
* Page 152. t Page 75.
120 B.II.CH.VI. IMPRISONMENT EXAMINED,
tence upon evidence, of a notorious malefactor,
who would not plead. It was a question, whether
he should be brought to tha press; but the jailor
privately recommended to the magistrates to try
solitary confinement in prison. This produced the
effect, for in less than twenty-four hours, the
daring, artful felon chose to hold up his hand at
the bar, and quietly submit to the laws, rather
than remain in such a solitary state without hope."
The same gentleman mentions* a set of cells,
provided for the purpose of solitary confinement, in
Clerkenwell Bridewell,by order of the Justices of the
Peace for that division. One of those magistrates, he
says, assured him, " That every person committed
to those solitary apartments, had been in a few
days reformed to an amazing degree." The apart
ments, though solitary, were not dark, nor is any
thing said about the circumstance of diet.
Directly opposed to solitary imprisonment is
the promiscuous association of prisoners. The
suffering which results from this circumstance, is
not the result of direct intention on the part of the
magistrate. It is an evil acknowledged, and yet
suffered still to exist to a very considerable extent.
It is evidently not so much inflicted as admitted,
from the supposed inability of Government to ex
clude it ; the great and only objection to its exclu
sion being the expense of the arrangements neces
sary to the accomplishment of that purpose. The
advantage by which it is recommended, is that of
frugality. It is less expensive to shut up prisoners
in one room, than to provide separate apartments
for each one, w or even to keep them divided into
classes, -j*
* Page 74.
t It must be acknowledged that this difficulty was very great
before the invention of the plan of central inspection.
B.II. CH.VI. IMPRISONMENT EXAMINED. 121
This promiscuous assemblage of prisoners, con
sidered as part of the punishment, has no penal
effect upon the most audacious and the most per
verse. On the contrary, with reference to them,
it renders imprisonment less painful, the tumult
with which it surrounds them, diverts them from
the misery of their situation, and from the re
proaches of their consciences. It is therefore an
evil most severe for the prisoner of refinement and
sensibility. It is an addition to the punishment
of imprisonment, evidently unequable, unexem-
plary, and unprofitable, producing a variety of
unknown sufferings, such that those only who have
experienced them, can be fully acquainted with
their extent.
But the great and decisive objection to the pro
miscuous association of prisoners, considered as a
punishment, is, that it is directly opposed to their
reformation. Instead of rendering a delinquent
better, its evident tendency is to make him worse.
The ill effect which, in the instance of indelible
infamy, is only problematical, is, in the instance
of this species of hardship, certain : it obliterates
the sense of shame in the mind of the sufferer : in
other words, it produces insensibility to the force
of the moral sanction.
This ill effect of the promiscuous association of
prisoners, is too obvious not to strike even the
most superficial spectator. Criminals, confined
together, are corrupted, it is said, by the society
of each other : there are a thousand ways of diver
sifying the expression, and it is generally set off
with great exuberance of metaphor. The word
corruption, and the greater part of the terms that
compose the moral vocabulary, are not calculated,
of themselves, to convey any precise import, but
serve rather to express the disapprobation which
122 B.II. CH.VI. IMPRISONMENT EXAMINED.
he who uses them happens to entertain of the prac
tices in question, than the tendency to produce
mischief, which is, or at least ought to be, the
ground of it. In order then to form a precise idea
of the phenomena in which this corruption displays
itself, let us examine the mischievous habits pro
duced by this promiscuous intercourse, and the
way in which it tends to produce mischief in
society.
The ill consequences of the association in ques
tion, may be comprised under the following heads:
1 . It strengthens, in the minds of all parties con
cerned, the motives which prompt to the commis
sion of all sorts of crimes.
2. It diminishes the force of the considerations
which tend to restrain them.
3. It increases their skill, and by that means
the power, of carrying their obnoxious propensities
into practice.
Crimes are the sort of acts here in question.
Now, the names of crimes are words, for which
precise ideas have, or might at least be found;
they are evils of a certain description. The names
of the motives that prompt a man to the commis
sion of a crime, are also the names of pains and
pleasures. In examining, therefore, the conse
quences of the association of delinquents, under
the foregoing heads, we tread upon clear and pal
pable ground, unobscured by metaphor and decla
mation.
1 . As to the motives by which men are prompted
to the commission of crimes. These are the ex
pectation of the pleasures which are the fruit of
them. By far the greater number of the offences
which bring men to a prison, are the offspring of
rapacity. Crimes issuing from any other motive,
are so few as scarcely to demand in this view any
B.II. CH.VI. IMPRISONMENT EXAMINED. J 23
separate notice. The bulk of offenders will be of
the poorer sort ; among them the produce of a
little plunder will go in the purchase of pleasure
much beyond that which the ordinary produce of
their labour would enable them to purchase ; such
as more food, more delicate liquors, in greater
plenty and more delicious, finer clothes, and
more expensive pleasures. These things naturally
form the subject of conversation among the pri
soners, and an inexhaustible subject of boasting
on the part of those who by their skill or good for
tune have acquired the means of enjoying them.
These recitals give a sort of superiority which
those who possess it are fond, from a principle of
vanity, to display and magnify to the humble and
admiring crowd of their less fortunate associates.
They inflame the imagination of the hearers ; and,
in a word, their propensity to gratify their rapacity
by all sorts of crimes, is increased by the prospect
of the pleasures of which the means are furnished
by these crimes. The more numerous the asso
ciation, the more varied the exploits to be re
counted ; and what subject more naturally the
subject of conversation, than the circumstances
which have brought them together.
2. While, on the one hand, as has been just ob
served, all the vicious propensities are nourished
and invigorated, on the other hand, all consi
derations tending to restrain the commission of
offences, are repelled and enfeebled. These con
siderations belong to the one or the other of the
three sanctions the political, the moral, or the
religious.
Those derived from the political sanction, are the
various punishments appointed by law; amongst
these, that which they are actually undergoing,
have undergone, or are about to undergo. Of
124 B. 1I.CH.VI. IMPRISONMENT EXAMINED.
these sufferings it will naturally be the study of
them all to make as light as possible ; to which
end the society of each other will afford them
many powerful assistances. From pride, each
man will endeavour to make his own sense of his
own sufferings appear to others as slight as pos
sible : he will undervalue the afflicting circum
stances of his situation : he will magnify any little
comforts which may attend it, and, as the common
phrase is, will put as good a face upon the matter
as he can. Thus the most intrepid and proud
become a pattern for all the others. The sensibi
lities of all are gradually elevated to the same
pitch : it would be matter of shame to them not
to bear their misfortunes with equanimity. Even
from mere sympathy, many will derive a powerful
motive to soothe the sufferings of their partners in
affliction to congratulate them on the termination
of such as are past, to relieve them under such as
are present, and to fortify them against such as
may be to come. It may possibly be observed,
that to ascribe to persons of the class in question
any such benevolent affections, is to attribute to
them virtues to which they are altogether strangers.
But to suppose that men consist only of two
classes, the altogether good, and the altogether
bad, is a vulgar prejudice. The crime which sub
jects a man to the lash of the law, may leave him
possessed of a thousand good qualities, and more
especially of sympathy for the misfortunes of others.
Daily experience may convince us of this, and lead
us to believe that the criminal are not always
altogether vicious.
The considerations derived from the moral sanc
tion, are the various evils, positive and negative,
apprehended from the ill-will of such persons with
whom the person in question is in society. Whilst
fc.II. CH.VI. - IMPRISONMENT EXAMINED. 125
a man remains in general society, though his
racter may be the subject of general suspicion, he
will be obliged to keep a guard upon his actions,
that he may not too strongly confirm these suspi
cions, and render himself altogether despicable.
But in a prison the society is unmixed, having in
terests of its own, opposite to the former, governed
by habits and principles opposite to those which
are approved in general society. The habits and
practices which were odious there, because they
were mischievous there, not being mischievous,
are not odious here. Theft is not odious among
thieves, who have nothing to be stolen. It is in
vain for them to make pretensions to probity ; they
agree, therefore, by a tacit convention, to under
value this virtue. The mixed qualities of patience,
intrepidity, activity, ingenuity, and fidelity, which
are beneficial or not according as they are subser
vient to the other, will be magnified to the pre
judice of the former. A man will be applauded
for his patience, though it were exerted in lying in
wait for a booty ; for his intrepidity, though mani
fested in attacking the dwelling of a peaceable
householder, or in defending himself against the
ministers of justice ; for his activity, though em
ployed in seizing the unwary traveller ; for his
ingenuity, though displayed in working upon the
sympathetic feelings of some deluded, compas
sionate benefactor ; for his fidelity, though em
ployed in screening his associates in some enter
prise of mischief from the pursuit of the injured.
These are qualities which enjoy the highest esti
mation in such society, and by their possession,
that thirst for sympathy and applause is gratified,
of which every man, in whatever situation he is
placed, is desirous.
The probity which is held in honour, in such
126 B.1I.CH.VI. IMPRISONMENT EXAMINED.
society, is not intended to be useful to mankind at
large : its rules may be strictly observed in the
society in which it is established, and disregarded
to the prejudice of all persons not connected with
that society. The Arabs, who live by plunder,
are remarkable for their honesty towards the mem
bers of their own tribe. Thus also, that there is
honour among thieves, has become proverbial.*
The considerations derived from the religious
sanction, are the sufferings apprehended from the
immediate will of the Deity, in some degree per
haps in the present, but chiefly in a future life.
This displeasure is, under the Christian religion,
and particularly the Protestant, invariably be
lieved to be annexed, with few or no exceptions,
to all those malpractices which bring men into
prisons. The considerations, therefore, which that
sanction affords are to be numbered among the
considerations which tend to restrain men from
committing crimes. Now the force of this sanc
tion, acting in opposition to that of the local moral
sanction, which is generated and governs in a
prison, will naturally have the whole force of this
latter exerted against it to overthrow it. Not
that a prison is the region of acute and scrupulous
* The influence of a man s conduct on the happiness of the
whole race of sensitive beings, must be taken into the account,
before it can with propriety be termed virtuous or vicious, simply
and without addition. The same conduct which is pernicious,
and on that account is or ought to be disreputable in society at
large, is beneficial to, and on that account, held in honour by,
a smaller society included within the former. The member of
parliament who solicits or defends for his borough a privilege
detrimental to the nation, is called a patriot in his borough.
The man who devised the oath by which the candidates for de
grees were made to engage not to propagate, elsewhere than at
Oxford and Cambridge, the seeds of what was thought useful
learning, was probably thought a man of great merit in those
Universities.
B.II. CH.VJ. IMPRISONMENT EXAMINED. 127
philosophy. The arguments there made use of, will
be addressed to the passions rather than the judg
ment. The being of a God, the authority of Revela
tion, will not be combatted by reason. The force of
this sanction will be eluded rather than opposed ;
the attention will be diverted from the idea of
God s displeasure, to the improbability of its being
manifested. The authority of revelation will be
combatted by satires upon its ministers ; and that
man will be pronounced brave, who shall dare to
deny the one, and despise the other. And argu
ments of this kind will be found to have most
influence upon the members of such societies.
3. The third and last of the ways in which
the association of malefactors in prisons contributes
to corrupt them, is by increasing their skill, and
by that means their power of carrying their mis
chievous propensities, whatever they may be, into
practice.
That their conversation will naturally turn upon
their criminal exploits has been already observed.
Each malefactor will naturally give a detail of the
several feats of ingenuity which, in the course of
those exploits, the occasion led him to practice.
These facts will naturally be noted down, were it
only on the score of curiosity. But as means of
gratifying those propensities, which the situation
in question has a strong tendency to strengthen
and confirm, they will make a much more forcible
impression. An ample mass of observations will
be soon collected, drawn from the experience of
the whole society, and each particular member of
it will soon be wise with the wisdom of the whole.
Prisons, therefore, have commonly and very pro
perly been stiled schools of vice. In these schools,
however, the scholar has more powerful motives
for, and more effectual means of, acquiring the
128 B.JI. CH.VI. IMPRISONMENT EXAMINED .
sort of knowledge that is to be learnt there, than he
has of acquiring the sort of knowledge that is taught
in more professed schools. In the professed school
he is stimulated only by fear, he strives against his
inclination. In these schools of vice he is stimu
lated by hope, acting in concert with his natural
inclination. In the first, the knowledge imparted
is dispensed only by one person ; the stock of
knowledge proceeds from one person : in the
others, each one contributes to the instruction of
all the others. The stock of knowledge is the
united contribution of all. In professed schools
the scholar has amusements more inviting to him
than the professed occupations of the school. In
these he has no such amusements, the occupation
in question is the chief of the few pleasures of which
his situation admits.
To the most corrupt, this promiscuous associa
tion is mischievous. To those committed for a
first offence, who have yielded to the temptations
of indigence, or have been misled by evil exam
ple ; who are yet young and not hacknied in
crimes ; punishment, properly applied, might
work reformation. This association can only
render such more vicious ; they will pass from
pilfering to greater thefts, till they are guilty of
highway robbery and murder. Such is the educa
tion yielded by promiscuous association of
criminals in prison.
129
CHAPTER VII.
GENERAL SCHEME OF IMPRISONMENT.
LET there be three kinds of imprisonment, dif
fering one from another in the degree of their
severity.
The first for insolvents : in case of rashness or
extravagance, in lieu of satisfaction. The second,
for malefactors whose imprisonment is to be tem
porary. These may be stiled second-rate male
factors. The third, for malefactors whose impri
sonment is perpetual. These may be stiled first-
rate malefactors.
1st. Let all insolvents be upon the footing of
bankrupts ; compellable to discover, under pain of
death, or other heavy penalty ; on discovery not
liable to imprisonment of course, but liable in
case of rashness or extravagance ; or else let rash
ness or extravagance be presumed in the first
instance; and let it lie upon the insolvent to
exculpate himself. To the same prison let such
persons be committed as are arrested upon niesne
process. On persons of this class the imprison
ment comes in before judgment to enforce ; after
judgment to stand in lieu of satisfaction. Here
let there be no mark of infamy. Nor let there be
here any rigour, either real or apparent.
The second kind of imprisonment is designed
for correction as well as for example. The real,
therefore, and the apparent punishment ought to
be upon a par. Here, let labour be added to im
prisonment, and for the last week, or fortnight, or
month, solitude, darkness, and spare diet. Here
K
130 B.II.CH.VII. GENERAL SCHEME
let a stigma be inflicted ; but let that stigma be
a temporary one. It will answer two purposes :
first, that of example, as increasing the apparent
punishment : second, that of security, by prevent
ing escape.
The third kind of imprisonment is destined for
example only. The end of correction is precluded ;
since the delinquent is never to mix with society
again. Here too, for the same purposes as in the
former case, let a stigma be inflicted ; and let that
stigma be perpetual. Here let the apparent con
dition of the delinquent be as miserable, and the
real as comfortable, as may be. Let the gentle
man occupy himself as he pleases. Let the
yeoman, who has an art, exercise his art, and let
him be a sharer in the profits. Let the labour of
the yeoman who knows no art be more moderate
than in the temporary prison.
The diet in many prisons is in part provided for
by private benefactions. Such benefactions are of
use only upon supposition of that gross negligence
on the part of Government, of which they are a
pregnant testimony. The demand a man in the
situation in question has for food, is not at all
varied by the happening or not happening of a
casual act of humanity by a chance individual.
Whatever be the proper allowance, he ought to
have as much, although no private benefaction
were given for that purpose ; he ought not to
have more, were the amount of such benefactions
ever so considerable. If ever the legislature should
fulfil this obvious and necessary duty, all such
private benefactions should be taken into the
hands of the public. Such resumption, far from
being a violation of the wills of the benefactors,
would be a more complete execution of them than
any they could have hoped for.
B. II. CH.VJI. OF IMPRISONMENT. 131
For the same reason all casual benefactions of
particular persons, to particular delinquents,
should be prevented. The way to do this, is not
to prevent the money s being given ; but to pre
vent its being spent, at least, in food and liquors ;
the introduction of money could not be prevented
without establishing a search too troublesome and
humiliating to be executed with the strictness
requisite to answer the purpose. But articles so
bulky as those of food and liquors might easily be
excluded. Such an institute would tend in no
inconsiderable degree to promote restitution. At
present, in all offences of rapacity, that is in nine
teen out of twenty, of the crimes that are com
mitted,* the greater a man s guilt has been, the
more mischief he has done, the better he fares
while he is in prison. It is seldom that the whole
produce of the crime is found upon the delinquent
at the time of his being apprehended ; and though
it be found on him, if it consists in money, it is sel
dom that it can be identified in such manner as to
warrant the restitution of it against the consent of
the delinquent. Commonly, if it is not spent, it is
in the hands of some friend of the delinquent ; an
associate in iniquity, a wife or mistress. Thus
secured, it is disposed of at his direction, and
either lavished in debauchery, or in feeing lawyers
to obstruct the course of justice.
When, therefore, the plunder is of no use to him,
it will require a much less effort, on his part, to
restore it to the right owner. The workings of
conscience will be powerfully seconded by such
an institution.
Whatever, therefore, is found upon the person,
* See Howard s Tables.
132 B.II. CH.VII. GENERAL SCHEME
or in the possession of any one who, by virtue of
a charge upon oath, is apprehended for a felony,
should be impounded in the hands of the officer.
As much of it as consists in money, or other articles
that include a considerable value in a small com
pass, should be sealed up with the seal of the
magistrate ; who should have it in his option to
keep it in his own custody, or commit it to that of
the ministerial officer, giving, in either case, a
receipt to the suspected felon.
An objection to imprisonment, when all are
upon an equal footing with respect to entertain
ment, is that the punishment is apt to be dispro
portionate. The rich are punished more than the
poor ; or, in other words, those who have been
accustomed to good living, more than those who
have been accustomed to hard living. On the
other hand, to allow those who are committed for
crimes of rapacity to give in to any expence while
any part of the booty they may have made
remains unrestored, is to allow them to enjoy the
profit of their crimes ; to give the criminal an
indulgence at the expense of those whom he has
injured.
Here, then, arises a difference in the treatment
proper to be given in this respect to different
crimes. Persons committed for crimes of rapacity,
should, in the case where the profit of the crime
has been reaped, be debarred, until complete resti
tution shall have been made, of the liberty of
procuring themselves those indulgences that are to
be had for money. Persons committed for any
other crimes may be allowed it.
With respect to restitution, a further caution is
to be observed. It will happen very frequently
that a person apprehended for one offence, has
B. II. C1I.V1I. OF IMPRISONMENT. J33
been guilty of many others. For this reason it is
not the restitution of the booty gained by the first
offence for which the malefactor is apprehended,
that ought to be deemed sufficient to entitle him
to the liberty of purchasing indulgences. A time
ought to be limited, (suppose a month or six
weeks) and notice given for any persons who,
within a certain time, (suppose a year) have
been sufferers by him, to come in and oppose the
allowance of such liberty. Very light proof in
such case ought to be held sufficient.
Let us return for a moment to the different kind*
of prisons : the different purposes for which they
are destined ought to be very decidedly marked in
their external appearance, in their internal ar
rangements, and in their denomination.
The walls of the first sort ought to be white
of the second, grey of the third, black.
On the outside of the two last kinds of prisons
may be represented various figures, emblematical
of the supposed dispositions of the persons con
fined in them. A monkey, a fox, and a tiger,
representing mischief, cunning, and rapacity, the
sources of all crimes, would certainly form more
appropriate decorations for a prison than the two
statues of melancholy and raving madness, for
merly standing before Bedlam. In the interior let
two skeletons be placed, one on each side of an
iron door : the occasional aspect of such objects is
calculated to suggest to the imagination the most
salutary terrors. A prison would thus represent
the abode of death, and no youth that had once
visited a place so decorated could fail of receiving
a most salutary and indelible impression. I am
fully aware, that to the man of wit, these emble
matical figures may serve as matter for ridicule :
in poetry they are admirable, in reality despicable.
134 B.II. CH.VIT. GENERAL SCHEME
Fortunately, however, they are more assailable by
ridicule than by reason.*
Distinguishing the several species of prisons by
characteristic denominations, is far from being a
useless idea. Justice and humanity to insolvent
debtors, and to persons detained upon suspicion,
require that they ought to be screened even from
the apprehension of being confounded with delin
quents, a risk to which they are naturally exposed,
where all places of confinement bear the same
appellation. If no such sentiment were found to
be already in existence, the legislator ought to
make it his business to create it : but the truth is,
that it does exist, and it is the most valuable
classes of the community that are most severely
wounded by this want of discrimination.
A difference in the situation and name affords
another means of aggravating one of the most im
portant parts of the punishment the apparent
punishment.
The first sort of prison may be called the House
for Safe Custody the second, the Penitentiary
House the third, the Black Prison.
The first of these names does not convey any
idea of misconduct ; the second does, but at the
same time presents the idea of reformation ; the
third is calculated to inspire terror and aversion.
With a view to reformation in the case of offences
punished by temporary imprisonment, part of the
punishment may consist in learning by heart a
certain part of the criminal code, including that
part which relates to the offence for which the
party is punished. It might be digested into the
form of a Catechism.
* Of the importance of symbols, and the uses that have been
made of them, by the Catholic clergy, after the example of
ancient Rome, see Emile, torn. iv.
B. II. CH.VII. OF IMPRISONMENT. 135
In second-rate felonies and misdemeanors,
where, after being punished, the offender is re
turned into society, it is of importance to lighten
as much as possible the load of infamy he has been
made to bear. The business is to render infamous
not the offender, but the offence. The punish
ment undergone, upon the presumption of his
being reclaimed, he ought not, if he is returned
into society, to have his reputation irretrievably
destroyed. The business is, then, for the sake of
general prevention, to render the offence infamous,
and, at the same time, for the sake of reformation,
to spare the shame of the offender as much as
possible. These two purposes appear, at first, to
be repugnant : how can they be reconciled ? The
difficulty, perhaps, is not so great as it at first
appears. Let the offender, while produced for the
purpose of punishment, be made to wear a mask,
with such other contrivances upon occasion as may
serve to conceal any peculiarities of person. This
contrivance will have a farther good effect in point
of exemplarity. Without adding anything to the
force of the real punishment, on the contrary,
serving even to diminish it, it promises to add
considerably to the force of the apparent. The
masks may be made more or less tragical, in pro
portion to the enormity of the crimes of those who
wear them. The air of mystery which such a
contrivance will throw over the scene, will con
tribute in a great degree to fix the attention by
the curiosity it will excite, and the terror it will
inspire.
136
CHAPTER VIII.
OF OTHER SPECIES OF TERRITORIAL CONFINE
MENT QUASI IMPRISONMENT RELEGATION
BANISHMENT.
Quasi Imprisonment consists in the confinement
of an individual to the district in which his ordi
nary place of residence is situated.
Relegation consists in the banishment of an indi
vidual from the district in which his ordinary place
of residence is situated, and his confinement to
some other district of the state.
Banishment consists in the expulsion of a man
from the country in which he has usually resided,
and the prohibition of his return to it.
These three species of punishment may be either
temporary or perpetual.
Relegation and banishment are punishments un
known to the English law. Transportation, as we
shall presently have occasion to observe, is in its
nature totally different. The exclusion of Papists
from a certain district about the court is to be
considered rather as a measure of precaution than
of punishment.
It is true, that the condition of persons living
within the rules of a prison corresponds pretty
accurately with the idea of territorial confinement.
But this kind of territorial confinement is not in
flicted in a direct way as a punishment. The
punishment inflicted by the law is that of impri
sonment, which the prisoner is allowed to com
mute upon paying for it. A man is not committed
to the rules : r^e is committed to the prison, and
B. II. CH.VIII. QUASI IMPiUSONMENT, ETC. 137
upon paying what the jailor chooses, or is permit
ted to demand, he has the liberty of the rules ;
that is, of being in any part of a certain district
round about the jail.*
The several inhabitable districts which are pri
vileged from arrest, may be considered as scenes of
territorial confinement with respect to offenders
who resort to them to escape being arrested, and
sent to prison. A man in such cases voluntarily
changes the severer species of restraint into a
milder.
In France, instances of relegation were not un-
frequent. Under the old regime, a man was
ordered to confine himself to his estate, or to quit
his estate and go and live at another place. A
punishment, however, of this sort, almost always
falls upon a man of rank,lmd generally was rather
an arbitrary expression of the personal displeasure
of the sovereign than a regular punishment in
flicted in the ordinary course of justice. The
person on whom it fell was commonly a disgraced
minister, or a member of parliament. It has re
peatedly happened that a whole parliament has
been relegated for refusing to register a particular
edict. In these cases, however, it was often em
ployed, not so much as a punishment, as a means
of prevention to prevent what were called in
trigues. The exercise of such an act of authority
was a symptom of apprehension and weakness on
the part of the minister.
When a man is banished from all the dominions
of his own state, he has either the whole world be-
* It appears from Mr Howard, that in England there are six
prisons that have Rules belonging to them. In London, two
the Fleet (p. 156), and the King s Bench (p. 196): in Carmar
then, two (pp. 422, 468) ; one in the Cornish borough of Lost-
withiel (p. 386) ; and one in Newcastle-upon-Tyne (p. 422).
138 B.II. CH.VIII. QUASI IMPRISONMENT, ETC.
sides left for him to range in, or he is confined to a
particular part of it. In the first case it may be
said to be indefinite, with respect to the locus ad
quern, in the other definite.*
It might seem at first sight as if the defining the
locus ad quern in banishment would be an operation
nugatory and impracticable. For banishment is
one of those punishments that are to be carried
into effect, if at all, only by the terror of ulterior
punishment. Now to be liable to ulterior punish
ment at the hands of his own state, a man must
be still in the power of that state ; which, by the
supposition, it would appear as if he could not be.
There are three cases, however, in which he may
be so still. 1. Where the banishment is only
temporary. 2. Where, though his person is out
of the dominions of his 3wn state, his property, or
some other possession of his, is still within its
power. 3. Where the foreign state to which he
is exiled is disposed on any account to co-operate
with his own, and either to punish, or give up to
* Instances of definite banishment are what one would not
expect to find frequent in any system of legislation. In banish
ment, the object in general is to get rid of the malefactor ; and
what becomes of him afterwards is not minded. If it were an
object of choice with the Government, what country the delin
quent should betake himself to, the circumstances that could not
but serve to determine such a choice would naturally be such
as were of a temporary nature. This, accordingly, was the case
with an Act of the British Parliament, which furnishes the only
instance that occurs to me of a punishment of this nature. By
statute 20 Geo. II, c. 46, the king is empowered to commute
the punishment incurred by persons engaged in the late rebel
lion, into transportation to America, and the persons thus dealt
with are made subject to the pains of capital felony, not only as
usual in case of their returning to any part of Great Britain or
Ireland, but besides that, in case of their going into any part of
the dominions of France or Spain, nations with whom the British
was then at war.
B.II. CH.VIII. QUASI IMPRISONMENT, ETC. 139
punishment, such persons as the latter shall deem
delinquents.
The inconveniences of territorial confinement,
whether by relegation or banishment, are for the
most part of the same description as those of sim
ple imprisonment ; they are apt in some respects
to be greater, in others less severe than simple
imprisonment.
Territorial confinement is, however, susceptible
of such infinite diversity, arising from the nature
of the place the extent of the district the cir
cumstances of the delinquent that nothing like
uniformity can be met with, and scarce any propo
sition can be laid down respecting it, that shall be
generally true.
In case of relegation, the liberty of beholding
the beauties of nature ana of the arts, of enjoying
the company of one s friends and relations, of
serving them and advancing one s own fortune, is
liable to be more or less abridged.
The liberty of exercising any public power, and
of taking journies for the sake of health or of
pleasure, are subject to be entirely taken away.
The liberty of carrying on business for a liveli
hood will be subject to be more or less abridged,
according to its nature ; and in respect of some
particular species of business or trade, the oppor
tunity of exercising it will be subject to be entirely
taken away.
In respect to banishment, the inconveniences are
liable to vary to such a degree, both in quality
and species, that nothing can be predicated of this
mode of punishment that shall be applicable to all
cases.
The sort of evils with which it will be found to
be most generally accompanied, may be arranged
under the following heads :
}40 B.II. CU.VIII. QUASI IMPRISONMENT, ETC.
Separation from one s friends, relations and
countrymen.
Loss of the liberty of enjoying objects of plea
sure or of amusement to \vhich one has been
accustomed, as public diversions, or the beauties
of nature or art.
Loss of the opportunity of advancement in the
way of life in which one had engaged, as in the
military line or in public offices.
Loss of the opportunity of advancing one s for
tune, and derangement in one s affairs, whether of
trade or any other lucrative profession. But un
der this head scarce anything can with certainty
be said till the business of each delinquent is
known, and the country to which he is relegated.
All opportunity of advancing one s fortune may be
totally taken away, or ^nay be changed more or
less for the worse, but it may even be improved.
A workman acquainted with only one branch of a
complicated manufacture, if relegated to a country
in which no such manufacture was carried on,
would lose the whole of his means of subsistence,
so far as it depended upon that manufacture. A
man engaged in his own country in the profession
of the law, relegated to a country governed by
different laws, would find his knowledge altoge
ther useless. A clergyman of the church of Eng
land would lose the means of subsistence derivable
from his profession, if relegated to a country in
which there were no members of that sect to be
found.
The quantity of suffering incident to banishment,
and, in some cases, to relegation, will depend
upon the individual s acquaintance, or want of ac
quaintance, with foreign languages. For this
purpose it ought to be borne in mind that in every
country the great majority of the people know no
B.IT. CH. VIII. QUASI IMPRISONMENT, ETC. 141
other language than their own. A great deal will
depend upon the language a man speaks. A Ger
man, or an Italian, merely by being banished his
own state, would suffer nothing in this respect,
because in other states he will find the bulk of
the people speaking precisely the same language.
Next to a German or an Italian, a Frenchman
would be least exposed to suffer, on account of the
popularity of the French language in other Euro
pean nations. An Englishman (except in America)
a Swede, a Dane, and a Russian, would find them
selves worse off in this respect than inhabitants
of other European countries.
A man being among people with whose language
he is unacquainted, is liable to be exposed to the
most serious evils. A difficulty in conversation
imports a difficulty in making known all one s
wants ; in taking the necessary steps for procuring
all sorts of pleasures, of warding off all sorts of
pains. Though so much of the rudiments of a
language should be acquired as may be sufficient
for the common purposes of life, a man rarely ac
quires it in such perfection as to enable him to
enjoy, unembarrassed, the pleasure of conversa
tion; he will feel himself condemned to a perpetual
state of inferiority, which must necessarily inter
fere with, and obstruct his engaging in any profit
able employment.
To some people, banishment may be rendered
in the highest degree irksome by the manners and
customs of the people among whom the individual
is cast. The words manners and customs are here
employed in their greatest latitude, and are con
sidered as comprising every circumstance upon
which a state of comfortable existence depends.
The principal objects to which they refer are diet,
cloathing, lodging, diversions, and everything de-
142 B.II. CH.VIII. QUASI IMPRISONMENT, ETC.
pending on difference of government and religion ;
which last has, among the loM^er classes at least,
no inconsiderable influence upon the sympathies
and antipathies of persons in general.
Throughout Europe, especially among persons
in the higher ranks of life, a certain degree of con
formity in manners and customs prevails : but a
Gentoo, banished from his own country, would be
rendered extremely wretched, especially on the
score of religion.
Change of climate is another circumstance of
importance; the change may be for the better;
but the bulk of mankind, from the effects of long
habit, with difficulty accustom themselves to a
climate different from that of their native country ;
the complaints of expatriated persons usually turn
upon the injuries their health sustains from this
cause.
With respect to all these several evils which are
thus liable to arise out of the punishment of ba
nishment, no one of them is certain to have place ;
they may or may not exist ; in respect of severity
they are liable to unlimited variation, and it may
even happen that the good may preponderate over
the evil.*
In point of frugality, it seems as if these several
* Gallic having been exiled to the isle of Lesbos, information
was received at Rome that he was amusing himself there, appa
rently very much to his satisfaction ; and that what had been
imposed upon him as a punishment, had, in fact, proved to him
a source of pleasure : upon this they determined to recal him to
the society of his wife and to his home, and directed him to
confine himself to his house, in order that they might inflict
upon him what he should think a punishment. Essais de Mon
taigne, liv. i, c. 2.
So far the French writer: Tacitus says
Italia exactus : et quia incusabatur facile toleraturus exilium,
delecta Lesbo, insula nobile et ameria retrahitur in arbem, cus-
toditurque domibus magistratuum. Ann, liv. vi, c. 3.
B.1I. CH.VIII. QUASI IMPRISONMENT, ETC. 143
punishments were all of them more eligible than
imprisonment, at least than the system of impri
sonment as at present managed ; and that quasi-
imprisonment and relegation are more frugal than
banishment.
Under imprisonment, a man must at all events
be maintained. Simple imprisonment adds nothing
to the facility which any man has of maintaining
himself by his labour. It takes from that facility
in many cases. By imprisonment some people will
always be altogether debarred from maintaining
themselves. These must be maintained at the
expense of the public. An imprisoned man, there
fore, is, on an average, a burthen. His value to
the state is negative. A man at liberty is, at an
average, a profit. His value to the state is posi
tive ; for each man, at an average, must produce
more than he consumes, else there would be no
common stock. A banished man is neither a bur
then nor a profit. His value to the state is 0. It
is greater, therefore, than that of an imprisoned
man.
The value of a man under quasi-imprisonment
and relegation, may, it should seem, be taken as
equivalent or not in any assignable degree, less
than that of a man at large. In the only instances
in which these modes of punishment occur in Eng
land, the sufferer, instead of receiving anything
from the public, pays.*
In point of certainty, they have none of them
* I am speaking of the rules in the six jails in England that
have rules. The public is not at the expense of finding lodging.
The houses are the property of private individuals, who get some
what more for them than could be got for houses in the same
condition out of the rules. Besides this advanced rent, the pri
soner pays fees for the indulgence, which go towards the jailor s
salary.
144 B.II. CM. VII I. QUASI IMPRISONMENT, ETC.
anything to distinguish them from other punish
ments.
In point of equality, they are all of them defi
cient,* but especially the two latter, &nd most of
all the last.
To be confined to within the circuit of a small
town can scarcely but be a punishment in some
degree to almost all, though to some more, to
others less. To live out of one s own province, or
out of one s own country, is a very severe punish
ment to many ; but to many it is none at all.
It is impossible to state with any accuracy the
difference in this respect between relegation and
banishment. In one point of view it should seem
as if banishment were the more penal. For the
difference in point of laws, language, climate and
customs, between one s own province and another
province of one s own state, is upon an average not
likely to be so great as between one s own pro
vince and a foreign state. In nations, however,
that have colonies, it will generally happen that
there are provinces more dissimilar to one another
upon the whole in those respects than some of
those provinces may be to other provinces of neigh
bouring nations. How small a change, for in
stance, would an Englishman find in crossing from
.Dover to Dunkirk, and how great a change in
going from the first of those places to the East or
West Indies ?
* This inequability may be illustrated by the history of the
young Venetian noble delegated to the Isle of Candia. De
spairing of being allowed to revisit the walls of his native city,
and of again embracing his friends and his aged father, he com
mitted another crime, unpardonable by the laws of the State,
because he knew that he should be reconveyed to Venice for
trial, and to suffer death. Moore s View of Society and Manners
in Italy, torn, i, lett. xiv.
B.II. CH.VIII. QUASI IMPRISONMENT, ETC. 145
In point of variability, except in respect of time,
no punishment of the chronical kind can be more
ineligible than these. But in point of intensity,
although the degrees of suffering they are liable to
produce in different persons are so numerous, yet
they are not by any means subject to the regula
tion of the magistrate. It is not in his power to
fix the quantity of punishment upon the whole to
anything near the mark he may pitch upon in his
own mind.
In point of exemplarity they all yield to every
other mode of punishment, and banishment to the
other two. As to banishment, what little exempla
rity it possesses, it possesses upon the face of the
description. The descriptions of orators and poets
have rendered it in some degree formidable upon
paper. On the score of execution, it is the essential
character of it to have none at all. Removed out
of the observation of his countrymen, his sufferings,
were they ever so great, can afford no example to
his countrymen. This is the lowest degree of
inexemplarity a punishment can possess, when
even tho person of the sufferer is out of the reach
of observation. The two others are upon a footing
with pecuniary punishment : in which the person
of the sufferer is under observation, and occasionally
perhaps his sufferings ; but there is no circumstance
to point out the derivation of the latter from the
punishment that produced them. They are inferior
to imprisonment : because there the main instru
ment of punishment, the prison, is continually
before his eyes. To quasi-imprisonment and
relegation there belongs no such instrument the
punishment as we have observed, being produced
in the first instance not by any material but merely
by moral means.*
* The little benefit that banishment, in so far as it operates
L
146 13. II. CH.VIII. QUASI IMPRISONMENT, ETC.
On the score of subserviency to reformation
there seems to be a considerable difference among
these three punishments. Quasi imprisonment is
apt to be disserviceable in this view : relegation
and banishment rather serviceable than otherwise,
more especially the latter.
1. Quasi imprisonment is apt to be disservice-
able. The reasons have been already given under
the head of Imprisonment. The property which
we mentioned as being incident to imprisonment, I
mean of corrupting the morals of the prisoners by
the accumulating, if one may so say, of the peccant
matter, is incident to quasi imprisonment only in a
somewhat less degree. Under the former they
can have no other company than that of each other:
under the latter there may be room for some ad
mixture of persons of repute. Under the former
they are forced into the company of each other :
under the latter they may choose to be alone.
2. Relegation is apt to be rather serviceable
than otherwise : as in solitary imprisonment, if
the delinquent has formed any profligate con
nections, it separates him from them, and does
not, like simple imprisonment, lead him to form
new ones of the same stamp. Turned adrift
among strangers he cannot expect all at once to
meet with a set of companions prepared to join
with him in any scheme of wickedness. Should
he make advances and be repulsed, he exposes
himself to their honest indignation, perhaps to the
censure of the law. Should the company he
happens to fall in with be persons as profligate as
himself, it would be some time before he could
establish himself sufficiently in their confidence.
as a punishment, can be of in the way of example, is reaped by
foreign states ; by that state to wit which the banished man
chooses for his asylum.
U.II. CH.VIII. QUASI IMPRISONMENT, ETC. 147
If he continues to make war upon mankind it must
be with his own single strength. He may find it
easier to betake himself to charity or to honest
labour. He is separated not only from the objects
which used to supply him with the means to
commit crimes, but from those which used to fur
nish him with the motives. The company he meets
with in the new scene he enters upon will either be
honest, or at least, for aught he can know to the
contrary, will for some time seem to be so. In the
meantime the disapprobation he may hear them
express for habits resembling those which subjected
him to the punishment he is undergoing, may co
operate with that punishment, and contribute to
the exciting in him that salutary aversion to those
habits which is styled repentance.
3. In this respect banishment is apt to be rather
more serviceable than relegation. If the delinquent
be still of that age at which new habits of life are
easily acquired, and is not insensible to the advan
tages of a good reputation, his exile, if the charac
ter in which he appears is not known, will be the
more likely to contribute to his reformation, from
his finding himself at a distance from those who
were witnesses of his infamy, and in a country
in which his endeavours to obtain an honest liveli
hood, will not be liable to be obstructed by finding
himself an object of general suspicion. But even
though he were to carry with him to the place of
his banishment his original vicious propensities, he
would not find the same facilities for giving effect
to them, especially if the language of the country
were different from his own. The laws also of the
foreign country being new to him, may on that
account strike him with greater terror than the laws
of his own country, which he had perhaps been
accustomed to evade. And even in case of meet-
148 B.II. CH.VIII. QUASI IMPRISONMENT, ETC.
ing with success in any scheme of plunder, the
want of established connections for the disposing
of it would render the benefit derivable from it
extremely precarious. The consideration of all
these difficulties would tend to induce him to
resort to honest labour as the only sure means of
obtaining a livelihood.
But, taking all the above sources of uncertainty
into consideration, it will be found that the cases
are very few in which banishment can be resorted
to as an eligible mode of punishment. In what
are called state offences it may occasionally be
employed with advantage, in order to separate the
delinquent from his connections, and to remove
him from the scene of his factious intrigues. In
this case, however, it would be well to leave him
the hope of returning as a stimulus to good con
duct during his banishment.
149
CHAPTER IX.
OF SIMPLY RESTRICTIVE PUNISHMENTS.
HAVING now considered the several punishments
\vhich restrain the faculty of locomotion, we pro
ceed to the consideration of those which restrain
the choice of occupations. These may be called
simply restrictive punishments, and consist in a
simple prohibition of performing certain acts.
Upon this occasion we may recur to a distinc
tion already explained, which exists between re
straint and punishment. The Civil Code and
Police Code are full of restraints, which are not
punishments. Certain individuals are prohibited
from selling poison. Innkeepers are prohibited
from keeping their houses open after a certain hour.
Persons are prohibited from exercising the profes
sions of medicine or of the law, without having
passed through certain examinations.
Simply restrictive punishments consist in the
preventing an individual from enjoying a common
right, or a right which he possessed before. If
the prohibition respects a lucrative occupation, if
for example an innkeeper or a hackney-coach
man is deprived of his licence, the prohibition acts
as a pecuniary punishment, in its nature very in
equable and unfrugal. If a man is deprived of
the means of earning his subsistence, he must
still be supported ; the punishment therefore falls
not upon the individual alone, but upon others
whom it was not intended to affect.
Employments which are not lucrative may
be of an agreeable nature ; their variety is infi-
150 B.II.CH.IX. OF SIMPLY RESTRICTIVE
nite : but there is one point in which thay all
agree, and which will render it unnecessary to
submit them to a detailed discussion. There are
none of them, or at least scarcely one, which by its
deprivation furnishes a sufficient portion of evil
to enable us to rely upon its effect.
As respects pleasures, the mind of man pos
sesses a happy flexibility one source of amuse
ment being cut off it endeavours to open up
another, and always succeeds ; a new habit is
easily formed ; the taste adopts itself to new
habits, and suits itself to a great variety of situa
tions. This ductility of mind, this aptitude to
accommodate itself to circumstances as they
change, varies much in different individuals ; and
it is impossible beforehand to judge, or even to
guess, how long an old habit will retain its domi
nion, so that its privation shall continue a real
punishment.
This is not the only objection Restrictive laws
are very difficult of execution : they always re
quire a subsidiary punishment of which the effect
is uncertain. If you prohibit an individual from
gaming, drunkenness, dancing and music, it be
comes necessary to appoint an inspector for all
these things, in all places, to see that your prohibi
tion is observed. In a word, punishments of this
kind are subject to this dilemma : either the attach
ment to the object prohibited is very weak or
very strong: if strong, the prohibition will be
eluded ; if weak, the object desired will not be
obtained.
In respect of exemplarity they are equally
defective : the privations they occasion are not of
a nature to be generally known, or if known to
produce a strong effect upon the imagination : the
B.II. CU.IX. PUNISHMENTS. 151
misery they produce rankles in the mind ; but is
completely hidden from the public eye.
These are some of the circumstances which have
reduced the employment of these punishments
within so narrow a compass : they are too uncer
tain in their effects, and too easily eluded, to allow
of their use, as the sanction to a general law. It
is true that if Judges were acquainted with the
characters and circumstances of individuals, they
might avail themselves of them with good effect;
but this knowledge can scarcely ever be ex
pected.
This species of punishment is well suited to
domestic government. There is no pleasure which
a parent or teacher cannot employ as a reward,
by permitting its enjoyment, or convert into a
source of punishment, by restricting its use.
But though restraints of this nature, that is to
say, prohibition of agreeable occupation, do not
alone form effective punishments, there is one case
in which they may be usefully employed in addi
tion to some other punishment analogy recom
mends such employment of them. Has an offence
been committed at some public exhibition, it may
be well to prohibit the delinquent from attending
such public exhibitions for a time.
Among simply restrictive punishments, there is
one of which a few examples are found, and which
has not received a name : I have called it banish
ment from the presence. It consists in an obligation
imposed upon the offender immediately to leave
the place in which he meets with the offended
party. The simple presence of the one is a signal
for the departure of the other. If Silius, the party
injured, enters a ball or concert room, a public
assembly or public walk Titius is bound instantly
152 B.II. CH.IX. OF SIMPLY RESTRICTIVE
to leave the same. This punishment appears
admirably well suited for cases of personal insult,
attacks upon honour, and calumnies, in a word in
all crimes which render the presence of the offen
der particularly disagreeable and mortifying to the
party offended.
In the employment of this punishment care must
be taken that power be not given to the party in
jured to banish the offender from places in which
he is carrying on his habitual operations, or where
his presence may be necessary for the discharge of
any particular duty. Hence it will, in many cases,
be found indispensable to make exceptions in
respect of churches, courts of justice, markets,
and political assemblies.
Instances in which this mode of punishment has
been employed may be found in the decrees of the
French Parliaments. It will be sufficient to men
tion one instance. A man of the name of Aujay
having insulted a lady of rank in the most gross
manner, among other punishments, he was ordered,
under pain of corporal punishment, to retire imme
diately from every place at which this lady might
happen to be present.*
In the Intrigues of the Cabinet may be seen
the account of a quarrel between Madame de
Montbazon and the Princess de Conde, in the
course of which the former was guilty of very gross
insults towards the Princess. The Queen, Ann
of Austria, ordered that Madame Montbazon
should retire from every place at which the Prin
cess was present. f
Under the English law there are various in
stances in which, though not under the name of
* Causes Celebres, torn. iv. p. 307. t Anquetil, torn. iii.
fi.Il.CH.IX. PUNISHMENTS. 153
punishment, restrictions are imposed upon certain
classes of persons. Catholics were formerly not
allowed to exercise either the profession of the law
or that of medicine. Persons refusing to take
the sacrament according to the rites of the Church
of England were excluded from all public offices.
Such was the law : the practice was always
otherwise : in point of fact, a very large propor
tion of offices, civil and military, were rilled by
persons who had never taken the oaths required,
but who were protected from the penalties to
which they would otherwise have been subjected
by an annual bill of indemnity. In point of right,
the security thus afforded was a precarious one,
but the uninterrupted practice of nearly a century
left little room for apprehension on the part of the
persons interested.
The restrictions here in question were not de
signed to operate as punishments ; they were ori
ginally imposed with a view of avoiding the danger
which, it was apprehended, might be incurred by
vesting in the hands of persons of certain religious
persuasions, situations of public trust. This, at
least, was the avowed political reason : the true
cause of the exclusion was however religious ani
mosity : they were acts of antipathy.
But these were not the only motives : self-
interest had its share in producing the exclusion.
Exclude one set of persons, and you confer a
benefit on another set : those to whom the right is
reserved have to contend with a smaller number
of competitors, and their prospect of gain is in
creased : these restrictive laws, originating in reli
gious hatred, were afterwards maintained by injus
tice ; the persecution began by misguided bigotry,
was persisted in long after the original inducement
had been forgotten, from the most sordid injus-
154 B.II. CH.IX. OF SIMPLY RESTRICTIVE, ETC.
tice. This is the short history of the persecutions
in Ireland. For the benefit of the Protestants,
the restrictive laws against the Catholics were
kept in force : out of eight millions of inhabitants,
a selection was made of one million, on whom were
conferred all offices of power or of profit. In this
state of things, whilst privileges are, by the conti
nuance of the persecuting laws, placed in the
hands of the persecutors, the procuring their abo
lition may be expected to be attended with no
small difficulty. The true motive the sordid
one will long be concealed under the mask of
religion.
Though it may be said that these restrictions
are not designed to operate as punishments, and
that, in the making of this general law, no parti
cular individual was aimed at, yet there results
from it a distinction injurious to the particular
class of persons affected by it necessarily inju
rious, since the continuance of the law can be jus
tified only by supposing them to be dangerous and
disloyal. Such laws form a nucleus around which
public prejudice collects ; and the legislator, by
acquiescing in these transient jealousies, strength
ens them, and renders them permanent. They
are the remnants of a disease which has been uni
versal, and which, after its cure, has left behind it
deep and lasting scars.
155
CHAPTER X.
OF ACTIVE OR LABORIOUS PUNISHMENT.
ACTIVE punishment is that which is inflicted
on a man by obliging, or to use another word,
compelling him to act in this or that particular
way, to exert this or that particular species of
action.
There are two kinds of means by which a man
may be compelled to act, physical and moral ; the
first applies itself to his body, the other to his
mind, to his faculty of volition.
The actions which a man may be compelled to
perform by physical means are so few, and so
unprofitable, both to the patient and to others, as
not to be worth taking into the account.
When the instrument is of the moral kind, it is
by acting on the volition that it produces its effect.
The only instrument that is of a nature to act im
mediately upon the volition, is an idea ; but not
every idea ; only an idea of pleasure or of pain, as
about to ensue from the performance or non- per
formance of the act which is the object of the
volition.
It cannot be an idea of pleasure which can so
act upon the volition as to give birth to an act the
performance of which shall be a punishment ; it
must therefore be an idea of pain, of any pain,
no matter what, so it be to appearance greater than
the pleasure of abstaining from the performance of
the penal act.
It is manifest, therefore, that when a punishment
of the laborious kind is appointed, another punish-
156 B.II. CH.X. OF ACTIVE OR
ment must necessarily be appointed along with it.
There are, therefore, in every such case,two different
punishments at least necessarily concerned. One,
which is the only one directly and originally in
tended, the laborious punishment itself; which
may be styled the principal or proper punishment :
the other, in case of the former not being submit
ted to, is called in to its assistance, and may be
styled the subsidiary punishment.
This subsidiary punishment may be of any kind
that, in point of quantity, is great enough. It
ought not, however, to be likewise of the laborious
kind ; since in that case, as well as in the case of
the principal punishment, the will of the patient is
necessary to constitute the punishment ; and to
determine the will, some incident is necessary that
does not depend upon the will. It will be neces
sary, therefore, to employ such punishments as are
purely passive, or those restrictive punishments in
which the instrument is purely physical.
In regard to this class of punishments, one thing
is here to be noted with reference to the instru
ment. In punishments of this kind, there is a link
or two interposed between the instrument and the
pain produced by means of it. The instrument
first produces the volition, that volition produces a
correspondent external act : and it is that act
which is the immediate cause by which the pain
here in question is produced. This punishment
then, we see, has this remarkable circumstance to
distinguish it from other punishments, it is produced
immediately by the patients own act : it is the
patient who, to avoid a greater punishment, inflicts
it on himself.
What then is the sort of act that is calculated
to produce pain in the case of active punishment?
It admits not of any description more particular
B.II.CH.X. LABORIOUS PUNISHMENT. 15?
than this : that it is any act whatever that a man
has a mind not to do ; or in other words that on
any account whatever is disagreeable to him.
An occupation is a series of acts of the same
kind, or tending to the same end. An occupation
may be disagreeable on a positive or a negative
account ; as being productive, in a manner more or
less immediate, of some positive pain, or as debar
ring from the exercise of some more agreeable
occupation.
Considered in itself, an occupation may be either
painful, pleasurable, or indifferent; but continued
beyond a certain time, and without interruption
(such is the constitution of man s nature,) every
occupation whatsoever becomes disagreeable: not
only so, but such as were in the beginning pleasura
ble become, by their continuance, more disagreeable
than such as were originally indifferent.*
To make the sum of his occupations pleasurable,
every man must therefore be at liberty to change
from one to another, according to his taste. Hence
it is that any occupation which, for a certain pro
portion of his time, a man is compelled to exercise,
without the liberty of changing to another, becomes
disagreeable, and in short becomes a punishment.
Active punishments are as various as the occu
pations in which, for the various purposes of life,
men can have occasion to be employed. These
being usually inflicted on all offenders indiscrimi
nately, have been such as all offenders indiscrimi
nately have been physically qualified to undergo.
* To eat grapes, for instance, is what, at certain times at least,
will probably be to most men rather an agreeable occupation :
to pick them an indifferent one. But in two or three hours, for
example, the eating them will become intolerable, while the
picking them may still remain, perhaps, in itself nearly a matter
of indifference .
158 B.II. CH.X. OF ACTIVE OR
They have consisted commonly in various exertions
of muscular force, in which there has been little or no
dexterity required in the manner of its application.
In general, they have been such as to produce a
pro/it : a collateral benefit in addition to that
expected from the punishment as such.
Among the modes of penal labour, a very com
mon one has been that of rowing. This is an
exercise performed chiefly by main strength, with
very little mixture of skill, and that presently
attained. Some vessels, of a bulk large enough to
bear any sea, have been made so as to be put in
motion in this manner, even without the help of
sails. This occupation is more unpleasant in itself
than that of an ordinary seamen, as having less
variety, besides that the rowers are confined by
chains. Such vessels are called gallies, and the
rowers gally-slaves. This punishment, though
unknown in England, is in use in most of the mari
time states of Europe, and particularly in the
Mediterranean and Adriatic Seas.
In many countries, malefactors have been em
ployed in various public works, as in the cleansing
of harbours* and the streets of towns, in making
roads, building and repairing fortifications, and
working in mines.
Working in the mines is a punishment employed
in Russia and in Hungary. In Hungary the mines
are of quicksilver, and the unwholesome effects
of that metal, upon a person who is exposed to the
effluvia of it for a length of time, may be one reason
for employing criminals in that work, in preference
to other persons.
* The employment of malefactors for the cleaning of harbours
was, for the first time, introduced into this country in the year
1776, by stat. 16 Geo. III. c. 43.
B.II. CI1.X. LABORIOUS PUNISHMENT. 159
Beating hemp is the most common employment
which delinquents are put to in our workhouses.
Persons of both sexes being subjected to it, with
out distinction.
From the nature of the service, active punish
ments may be distinguished into two sorts, specific
and indiscriminate. I call it specific, when it
consists in the being obliged to do such and such
a particular kind or kinds of work : indiscriminate,
when it consists in the being obliged to do not any
kind of work in particular, but every kind of work
in general, which it shall please such or such a
person to prescribe. If such person take all the
profit of the work, he is called a master. If the
profit is received by some other person, he is
called a keeper, or overseer. There are cases of
a mixed nature, in which, in certain respects, the
servitude is indiscriminate, as to other respects,
specific.
At Warsaw, before the partition of Poland, there
was a public workhouse, in which convicts were
confined in ordinary to particular employments
determined by the laws or custom of the place.
To this workhouse, however, any person who
thought proper might apply, and upon giving
security for their forthcomingness, and paying a
certain stipulated price for their use, a certain
number of the convicts were allotted to him, to be
employed in any piece of work for a given time.
The services they were employed upon were
generally of a rough kind, such as digging a ditch,
or paving a court ; and a soldier, or a party of
soldiers, according to the number of convicts thus
employed, was placed over them as a guard.
This custom was also in use in Russia.*
* See the Abbe Chappe s travels in that country. The Abbe
160 B. II.CH.X. OF ACTIVE OR
This distinction between specific and indiscri
minate servitude, may be illustrated by two exam
ples, derived from the English law.
The example of specific punishment is afforded
by the statute which directs the employment of
certain malefactors on board the hulks, in improv
ing the navigation of the Thames. The statute
determines the kind of labour, and the subsidiary
punishments by which it is to be enforced.
Indiscriminate servitude is part of the punish
ment inflicted by our laws under the name of
transportation. This servitude is sometimes limited
as to its duration, but is without limitation, and
without restriction, in respect of the services which
may be required.
All these kinds of labour, whether indiscriminate
or specific, require as a necessary accompaniment
that the individual should be upon that spot where
the business is to be done. Some import impri
sonment ; all of them import restraint upon occu
pations, to wit, upon all occupations incompatible
with those in which they constrain a man to em
ploy himself. The degree of this restraint is in a
manner indefinite. To lay a man, therefore, under
a particular constraint of any kind, is for that time
to lay him under an almost universal restraint.
The clear value then of the pleasure which a man
loses by being compelled to any particular occu
pation, is equal to that of the greatest of all the
pleasures which, had it not been for the compul
sion, he might have procured for himself.
had particular reason to remember it. Wanting, for the pur
pose of some experiment, to have the earth dug, he was compli
mented with the use of a dozen of these poor prisoners. Having
given them some money to purchase liquor, they employed it in
making their guard drunk, and then took to flight. Vol. I,
page 149.
B.II.CH.X. LABORIOUS PUNISHMENT. 1C I
Upon examining laborious punishment, we
shall find it to possess the properties to be wished
for in a mode of punishment, in greater perfec
tion, upon the whole, than any other single
punishment.
1 . It is convertible to profit. Labour is in fact
the very source of profit. Not that, after all, its
power in this way is so extensive as that of
pecuniary punishment. For, from the punish
ment of one man in this way, all the profit that is
to be reaped is that which is producible by the
labour of one man; a limited and never very
ample quantity. On the other hand, from the
punishment of a man in the pecuniary way, it
may happen that a profit shall be reaped equal
to the labour of many hundred men. The dif
ference, however, in favour of this punishment is,
that money is a casual fund ; labour one that
cannot fail. Indeed, upon the whole, though
pecuniary punishment be in particular instances
capable of being more profitable, yet, considering
how large a proportion of mankind, especially of
those most liable to commit the most frequent
and troublesome kinds of crimes, have no other
possession worth estimating than their labour :
laborious punishment, if managed as it might and
ought to be, may perhaps be deemed the most
profitable upon the whole.
2. In point of frugality to the state, laborious
punishment, considered by itself, is as little liable
to objection as any other can be. I say, con
sidered by itself: for, when coupled with impri
sonment, as it can hardly but be in the case of
public servitude, it is attended with those expenses
to the public which have been noticed under the
article of imprisonment. These, however, are not
to be charged to the account of the laborious part
162 B.II. CH.X. OF ACTIVE OR
of the punishment : so that the advantage which
laborious punishment has on this score over sim
ple imprisonment is quite a clear one. But the
former of these two punishments, though sepa
rable from the latter in idea, is not separable in
practice. Imprisonment may be made to subsist
without labour : but forced labour cannot be made
to subsist without imprisonment. The advantage
then,which servitude has in this respect, when com
pared with imprisonment, ceases when compared
with any other mode of punishment. However,
the profit gained by the one part is enough, under
good management, to do more than balance the
expense occasioned by the other. So that upon
the whole it has the advantage, in point of
economy, over any other mode of punishment but
pecuniary.
3. It seems to stand equally clear of objection in
point of equability. As to the restraint it involves, it
accommodates itself of itself to each man s circum
stances. For, with respect to each man, it has
the effect of restraining him from following those
occupations, whatever they may be, which are to
him most pleasurable. The positive servitude
itself will be apt to sit heavier on one man than
another. A man who has not been used to any
kind of labour will suffer a good deal more, for
some time at least, than one who has been used
to labour, though of a different kind or degree
from that in question. But this inconvenience
may be pretty well obviated by a proper attention
to the circumstances of individuals.
4. In point of variability, though it is not per
fect throughout, yet it is perfect as far as it goes.
In a very low degree it is not capable of subsist
ing ; on account of the infamy it involves, at least
in a country governed by European manners. One of
B. II. CII.X. LABORIOUS PUNISHMENT.
the most odious acts of the reign of the Emperor,
Joseph II, was the sentencing persons of high rank
to labour in the public works. The Protestants
of France considered the condemnation of their
religious ministers to the galleys as a personal
insult done to themselves : in this respect then it
falls short of pecuniary punishment. After that
exception it is capable of being varied to the ut
most nicety : being variable as well in respect of
intensity, as of duration.
5. In point of exemplarity it has no peculiar
advantage; neither is it subject to any disadvan
tage. Symbols of suffering it has none belonging
to itself : for the circumstance which distinguishes
penal servitude from voluntary labour is but an
internal circumstance the idea of compulsion
operating on the patient s mind. The symbols,
however, that belong necessarily to the punish
ment it is naturally combined with, I mean im
prisonment, apply to it of course ; and the means
of characterising the condition of the patient by
some peculiarity of dress are so obvious, that
these may be looked upon as symbols naturally
connected with it.
6. In point of subserviency to reformation it is
superior to any other punishment, except that
mode of imprisonment which we have already
insisted on as being peculiarly adapted to this
purpose.* Next to the keeping of malefactors
asunder, is the finding them employment while
they are together. The work they are engaged
in confines their attention in some measure : the
business of the present moment is enough to
occupy their thoughts ; they are not stimulated
by the impulse of ennui to look out for those
* Supra, p. 114.
164 fi.II. CH.X. OF ACTIVE OR
topics of discourse which tend, in the manner that
has been already explained, to fructify the seeds
of corruption in their minds : they are not obliged,
in search of aliment for speculation, to send back
their memory into the field of past adventures, or
to set their invention in quest of future projects.
This kind of discipline does not indeed, like the
other, pluck up corruption by the roots : it tends
however to check the growth of it, and render the
propensity to it less powerful. Another circum
stance, relative to the nature of this discipline,
contributes to check the progress of corruption :
to insure the performance of their tasks it is
necessary that the workmen should be under the
eye of overseers. The presence of these will
naturally be a check to them, and restrain them
from engaging in any criminal topics of discourse.
So much for the tendency which this punish
ment has to keep men from growing worse. It
has besides this a positive tendency to make them
better. And this tendency is more obvious and
less liable to accident than the other. There is a
tendency, as has been already observed, in man s
nature to reconcile and accommodate itself to
every condition in which it happens to be placed.
Such is the force of habit. Few occupations are so
irksome that habit will not in time make them sit
tolerably easy. If labour then, even though
forced, will in time lose much of its hardship, how
much easier will it become when the duration and
the mode are in some measure regulated by the
will of the labourer himself; when the bitter ideas
of infamy and compulsion are removed, and the
idea of gain is brought in to sweeten the employ
ment? in a word, when the labourer is left to
work at liberty and by choice ?
7. This mode of punishment is not altogether
B.II. CH.X. LABORIOUS PUNISHMENT. 165
destitute of analogy, at least of the verbal kind, to
that class of crimes which are the most frequent,
and for which an efficacious punishment is most
wanted : crimes, I mean, that result from a principle
of rapacity or of sloth. The slothful man is con
strained to work. The vagabond is confined to a
particular spot. The more opposite the restraint
thus imposed is to the natural inclination of the
patient, the more effectually will he be deterred
from indulging his vicious propensities by the pros
pect of the punishment that awaits him.
8. With regard to the popularity of this species
of punishment in this country, the prejudices of the
people are not quite so favourable to it as could
be wished. Impatient spirits too easily kindled
with the fire of independence have a word for it,
which presents an idea singularly obnoxious to a
people who pride themselves so much upon their
freedom. This word is slavery. Slavery they
say is a punishment too degrading for an English
man, even in ruins. This prejudice may be con
futed by observing, 1st, That public servitude is
a different thing from slavery. 2dly, That if it
were not, this would be no reason for dismissing
this species of punishment without examination.
If then upon examination it is found not to be pos
sessed, in a requisite degree, of the properties to
be wished for in a mode of punishment that, and
not the name it happens to be called by, is a reason
for its rejection : if it does possess them, it is not
any name that can be given to it that can change
its nature. But these observations have been
more fully insisted on in the Chapter on Popularity.
Having thus spoken of this species of punish
ment in general, let us stop a moment to consider
the different kinds of labour which ought to be
preferred.
16G B.I I. CH.X. OF ACTIVE OR
The principal distinction is that of public and
private labour.
In public works, the infamy of their publicity
tends to render the individuals more depraved
than the habit of working tends to reform them.
At Berne there are two classes of fixed labourers,
the one employed in cleaning the streets, and in
other public works ; the others employed in the in
terior of the prison. The latter, when set at
liberty, rarely fall again into the hands of justice;
the former are no sooner set at liberty than they
are guilty of new crimes. This difference is ac
counted for at Berne by the indifference to shame
they contract in a service, the infamy of which
is renewed day by day. It is probable that after
the notoriety of this disgrace, nobody in the coun
try would like to hold communication with or to
employ them.
The rough and painful kinds of labour which
are ordinarily selected for this kind of punish
ment do not generally seem suitable. It is diffi
cult to measure the powers of individuals, or to
distinguish real from simulated weakness. Sub
sidiary punishments must be proportioned to the
difficulty of the labour and to the indisposition to
perform it. The authority with which an inspec
tor must be armed is liable to great abuses ; to
rely upon his pity, or even upon his justice, in an
employment which hardens the heart, betrays an
ignorance of human nature ; so soon as it becomes
necessary to inflict corporal punishment, the indivi
dual who is charged with its execution will be
come degraded in his own opinion, and he will
revenge himself by the abuse of his authority.
Nam nil asperius hnmili (jni surgit in altum.*
* Clau otan.
B.1I. CH.X. LABORIOUS PUNISHMENT. 167
Labours which require great efforts ought to be
performed by free labourers. The labour obtained
by the force of fear is never equal to that which is
obtained by the hope of reward. Constrained
labour is always inferior to voluntary labour ; not
only because the slave is interested in concealing
his powers, but also because he wants that energy
of soul upon which muscular strength so much
depends. It would be a curious calculation to
estimate how much is lost from this cause in those
states where the greater portion of labour is per
formed by slaves. It would tend greatly to prove
that their gradual emancipation would be a noble
and beneficial measure.
Labour in mines, except in particular circum
stances, is little suitable for malefactors, partly
for the reason above given, and partly from the
danger of degrading this occupation. The ideas
of crime and shame will soon be associated with
it ; miner and criminal would soon become syno
nymous ; this would not be productive of incon
venience if the number of malefactors were suffi
cient for working the mines, but if the contrary is
the case, there might be a lack of workmen, from
the aversion inspired towards this kind of labour in
those who used to exercise it voluntarily, or who
are at liberty to choose respecting it.
168
CHAPTER XI.
CAPITAL PUNISHMENT.
CAPITAL punishment may be distinguished into
1st, simple; 2nd, afflictive.
I call it simple when, if any bodily pain be pro
duced, no greater degree of it is produced than
what is necessary to produce death.
I call it afflictive, when any degree of pain is
produced more than what is necessary for that
purpose.
It will not be necessary, upon the present occa
sion, to attempt to give an exhaustive view of all
the possible modes by which death might be pro.
duced without occasioning any, or the least possi
ble quantity of collateral suffering. The task
would be almost an endless one : and when
accomplished, the only use to which it could be
applied would be that of affording an opportunity
of selecting out of the catalogue the mode that
seemed to possess the desired property in the
greatest perfection, which may readily be done
without any such process.
The mode in use in England is far from being
the best that could be devised. In strangulation
by suspension, the weight of the body alone is
seldom sufficient to produce an immediate and
entire obstruction of respiration. The patient,
when left to himself, struggles for some time:
hence it is not uncommon for the executioner, in
order to shorten his sufferings, to add his own
weight to that of the criminal. Strangling by
the bowstring may to some, perhaps, appear a
B.II. CH.XI. CAPITAL PUNISHMENT. 1G9
severer mode of execution ; partly from the pre
judice against every usage of despotic govern
ments, partly by the greater activity exerted by
executioners in this case than in the other. The
fact however is, that it is much less painful than
the other, for it is certainly much more expedi
tious. By this means the force is applied directly
in the direction which it must take to eifect the
obstruction required : in the other case, the force
is applied only obliquely ; because the force of
two men pulling in that manner is greater than
the weight of one man.
It is not long, however, even in hanging, before
a stop is put to sense ; as is well enough known
from the accounts of many persons who have sur
vived the operation. This probably is the case a
good while before the convulsive strugglings are
at an end ; so that in appearance the patient
suffers more than he does in reality.
With respect to beheading, there are reasons for
supposing that the stop put to sensation is not
immediate : a portion of sensibility may still be
kept up in the spinal marrow a considerable time
after it is separated from the brain. It is so, at
least, according to all appearance, for different
lengths of time in different animals and insects,
which continue to move after their heads are sepa
rated from their bodies.
SECT. II. AFFLICTIVE CAPITAL PUNISHMENT.
To exhaust this part of the subject it would be
necessary to make a catalogue of every various
punishmentof this description of which, in practice,
there has been any example, adding to them such
others as the imagination could be made to supply ;
but, the ungrateful task performed, of what use
170 B.II. CH.XI. CAPITAL PUNISHMENT.
would it be ? We shall the more willingly refrain
from any such labour as in the more modern Euro
pean codes these punishments have been altogether
discarded ; and in those in which they have not
been formally abolished, they have long fallen into
disuetude. Let us rejoice in these improvements :
there are few opportunities in which the philoso
pher can offer to the governors of the world more
just or more honourable congratulations. The
importance of the subject, however, will not admit
of its being passed over in perfect silence. The
system of jurisprudence in question has been too
long established, it has had too many apologists,
and has had for its supporters too many great names,
to allow of its being altogether omitted in a work
expressly treating on the subject of punishment.
It may besides be of use to shew that reason con
curs with humanity in the condemning punishments
of this description, not merely as being useless,
but as producing effects contrary to the intention
of the legislator.
If the particular nature of the several species of
punishments of this description be examined, as
well those that have for a long time past been abo
lished, such as crucifixion and exposure to wild
beasts, as those that have been in use in various
parts of modern Europe, such as burning, empaling,
tearing to pieces, and breaking on the wheel, it will
be found in all of them that the most afflictive part
consists in their duration: but this circumstance
is not of a nature to produce the beneficial effect
that may have been expected from it.
When any particular species of punishment is
denounced, that part of it which takes the strongest
hold of the imagination is its intensity : its duration
makes a much more feeble impression. A slight
apparent addition of organical suffering made to
B.1I.CH.XI. CAPITAL PUNISHMENT. 171
the ordinary mode of inflicting the punishment of
death, produces a strong effect upon the mind : the
idea of the duration of its pains is almost wholly
absorbed by the terrors of the principal part of the
punishment.
In the legal description of a punishment, its
duration is seldom (distinctly) brought to view ;
it is not mentioned, because in itself it is naturally
uncertain : it depends partly upon the physical
strength of the patient, and partly upon various
other accidental circumstances. To this remark
able and important feature of this species of pu
nishment there is no means by which the attention
can be drawn and fixed upon it : upon those who
reflect, it produces no impression; upon those who
do not reflect, it is altogether lost.
It is true that the duration of any particular
punishment might be fixed by law ; the number
of hours or minutes might be determined, which
should be employed in performing the several pre
scribed manipulations. This obviously would be
a mode of fixing the attention upon this particular
feature of the punishment : but even this mode,
perfect as it may appear to be, would be found
very inadequate to produce the desired effect.
By the help of pictures, the intensity of any par
ticular species of punishment may be more or less
faithfully represented ; but to represent its dura
tion is impossible. The flames, the rack and all
the engines of torture, together with the convul
sive throes of the half-expiring and wretched suf
ferer, may be depicted, but time cannot. A
punishment that is to be made to last for two
hours will not appear different from a punishment
that is to last only a quarter of an hour. The
deficiencies of art may, to a certain degree, be com-
172 B.II.CH.XT. CAPITAL PUNISHMENT.
pensated for by the imagination : but even then
the reality will be left far behind.
It is true that upon bystanders the duration of
the punishment is calculated to make a strong
impression : but even upon them, after a certain
time, the prolongation loses its effect, and gives
place to a feeling directly opposite to that which
it is desirable to produce sentiments of pity and
sympathy for the sufferer will succeed, the heart
of the spectator will revolt at the scene he wit
nesses, and the cry of suffering humanity will be
heard. The physical suffering will not be confined
to the offender : the spectators will partake of it :
the most melancholy accidents, swoonings, and
dangerous convulsions will be the accompaniments
of these tragic exhibitions. These sanguinary exe
cutions, and the terrific accounts that are spread
concerning them, are the real causes of that deep-
rooted antipathy that is felt against the laws and
those by whom they are administered ; an antipathy
which tends to multiply offences by favouring the
impunity of the guilty.
The only reason that can be given by any
government, that persists in continuing to employ
a mode of punishing so highly penal, is, that the
habitual condition of the people is so wretched that
they are incapable of being restrained by a more
lenient kind of punishment.
Will it be said that crimes are more frequent in
countries in which punishments such as those in
question are unknown. The contrary is the fact.
It is under such laws that the most ferocious rob
bers are found : and this is readily accounted for.
The fate with which they are threatened hardens
them to the feelings of others as well as their own.
They are converted into the most bitter enemies,
B.II.CH.XI. CAPITAL PUNISHMENT. 173
and every barbarity they inflict is considered as a
sort of reprisal.
Upon this subject, as upon so many others,
Montaigne was far beyond the age in which he
lived. All beyond simple death (he says) appears
to me to be cruelty. The legislator ought not to
expect that the offender that is not to be deterred
by the apprehension of death, and by being be
headed and hanged, will be more effectually de
terred by the dread of being exposed to a slow
fire, or the rack. And I do not know indeed but
that he may be rendered desperate.*
By the French Constituent Assembly afflictive
punishments were abolished. In the Code Napoleon,
beheading is the mode prescribed for inflicting the
punishment of death. And it is only in the case
of parricide, and of attempts made upon the life of
the sovereign, that to the simple punishment of
death the characteristic afflictive punishment of
cutting off the head of the offender is added.
In this country, the only crime for which afflic
tive punishment is in use, is that of high treason.
The judgment in high treason consists of seven
different operations of the afflictive kind. 1.
Dragging at a horse s tail along the streets from
the prison to the place of execution. 2. Hanging
by the neck, yet not so as entirely to destroy life.
3. Plucking out and burning of the entrails while
the patient is yet alive. 4. Beheading. 5.
Quartering. 6. Exposure of the head and quarters
in such places as the King directs. This mode of
punishment is not now in use. In favour of nobility,
the judgment has been usually changed into
* Liv. ii. ch. 27. Cowardice the mother of cruelty.
Et lupus et turpes instant morientilus ursi
Et qutecunque minor nobilitate fera est.
OVID.
174 B.II. CH.XI. CAPITAL PUNISHMENT.
beheading : in favour of the lower classes, into
hanging.
I wish that upon this part of our subject we
could end here ; but unfortunately there remains
to be mentioned an afflictive mode of punishment
most excruciating, and more hideous than any of
which we have hitherto spoken, and which is still
in use. It is not in Europe that it is employed,
but in European colonies in our own West India
Islands.
The delinquent is suspended from a post by
means of a hook inserted under his shoulder, or
under his breast bone. In this manner the sufferer
is prevented from doing anything to assist himself,
and all persons are prohibited, under severe penal
ties, from relieving him. He remains in this situa
tion, exposed to the scorching heat of the day,
where the sun is almost vertical, and the atmos
phere almost without a cloud, and to the chilling
dews of the night ; his lacerated flesh attracts a
multitude of insects, which increase his torments,
and under the fever produced by these complicated
sufferings, joined to hunger and thirst, all raging
in the most intense degree, till he gradually
expires.
When we reflect on this complication of suffer
ings, their intensity surpasses everything that the
imagination can figure to itself, and consider that
their duration continues not merely for many
hours, but for many days, it will be found to be
by far the most severe punishment ever yet de
vised by the ingenuity of man.
The persons to whom this punishment has been
hitherto appropriated, are negro slaves, and their
crime, what is termed rebellion, because they are
the weakest, but which, if they were the strongest,
would be called an act of self-defence. The
B.II. CH.XI. CAPITAL PUNISHMENT. 175
constitutions of these people are, to their misfor
tune, in certain respects so much harder than
ours, that many of them are said to have lingered
ten or twelve days under these frightful torments.
It is said that this punishment is nothing more
than is necessary for restraining that people, and
keeping them in their servile state ; for that the
general tenor of their lives is such a scene of
misery, that simple death would be generally a
relief, and a death less excruciating would scarce
operate as a restraint.
This may perhaps be true. It is certain that a
punishment to have any effect upon man must
bear a certain ratio to the mean state of his way
of living, in respect of sufferings and enjoyments.
But one cannot well help observing where this
leads. The number of slaves in these colonies is
to that of freemen as about six to one ; there
may be about three hundred thousand blacks and
fifty thousand whites; here there are three hun
dred thousand persons kept in a way of life that
upon the whole appears to them worse than death,
and this for the sake of keeping fifty thousand
persons in a way of life not remarkably more
happy than that which, upon an average, the same
number of persons would be in where there was
no slavery ; on the contrary, it is found that men
in general are fond, when they have the opportu
nity, of changing that scene for this. On the other
hand, it is not to be disputed that sugar and
coffee, and other delicacies, which are the growth
of those islands, add considerably to the enjoy
ments of the people here in Europe ; but taking
all these circumstances into consideration, if they
are only to be obtained by keeping three hundred
thousand men in a state in which they cannot be
kept but by the terror of such executions : are
170 B.II.CH.XI. CAPITAL PUNISHMENT.
there any considerations of luxury or enjoyment
that can counterbalance such evils.
At the same time, what admits of very little
doubt is, that the defenders of these punishments,
in order to justify them, exaggerate the miseries
of slavery, and the little value set by the slaves
upon life. If they were really reduced to such a
state of misery as to render necessary laws so
atrocious, even such laws would be insufficient for
their restraint ; having nothing to lose, they would
be regardless of all consequences ; they would be
engaged in perpetual insurrections and massacres.
The state of desperation to which they would be
reduced would daily produce the most frightful
disorders. But if existence is not to them a mat
ter of indifference, the only pretence that there is
in favour of these laws falls to the ground. Let
the colonists reflect upon this ; if such a code be
necessary, the colonies are a disgrace and an out
rage on humanity : if not necessary, these laws
are a disgrace to the colonists themselves.
177
CHAPTER XII.
CAPITAL PUNISHMENT EXAMINED.
IN making this examination, the following plan will
be pursued. The advantageous properties of
capital punishment will in the first place be con
sidered : we shall afterwards proceed to examine
its disadvantageous properties.
We shall, in the last place, consider the collate
ral ill effects resulting from this mode of punishment:
effects more remote and less obvious, but some-
times more important, than those which are more
immediate and striking.
The task thus undertaken would be an ex
tremely ungrateful and barren one, were it not
that the course of the examination will lead us to
make a comparison between this and other modes
of punishment, and thus to ascertain which is
entitled to the preference. On the subject of
punishment, the same rule ought in this respect
to be observed as on the subject of taxes. To
complain of any particular tax as being an injudi
cious one, is to sow the seeds of discontent/and
nothing more : to be really useful, this in itself
mischievous discovery, should be accompanied by
the indication of another tax which vvill prove
equally productive, with less inconvenience.
SECT. I. ADVANTAGEOUS PROPERTIES OF THE
PUNISHMENT OF DEATH.
1. The most remarkable feature in the punish
ment of death, and that which it possesses in the
178 B.II. CH. XII. CAPITAL PUNISHMENT
greatest perfection, is the taking from the offender
the power of doing further injury. Whatever is
apprehended, either from the force or cunning of
the criminal, at once vanishes away. Society is
in a prompt and complete manner delivered from
all alarm.
2. It is analogous to the offence in the case ot
murder; but there its analogy terminates.
3. It is popular in respect of that same crime,
and in that alone.
4. It is exemplary in a higher degree perhaps
than any other species of punishment, and in coun
tries in which it is sparingly employed, an execu
tion makes a deep and lasting impression.
It was the opinion of Eeccaria that the impres
sion made by any particular punishment was in
proportion to its duration, and not to its intensity.
<< Our sensibility" (he observes) " is more readily
and permanently affected by slight but reiterated
attacks than by a violent but transient affection
For this reason the putting an offender to death
forms a less effectual check to the commission ot
crimes than the spectacle of a man kept in a state
of confinement, and employed in hard labour, to make
some reparation by his exertions for the injury he
has inflicted on society."*
Notwithstanding such respectable authority, 1
am apt to think the contrary is the case. This
opinion is founded principally on two observations.
] Death in general is regarded by most men as
the greatest of all evils, and they are willing to
submit to any other suffering whatever in order to
avoid it. 2. Death, considered as a punishment, is
almost universally reckoned too severe, and men
plead, as a measure of mercy, for the substitution ol
* DCS Delits et des Peines. Sect. xvi.
B.II. CII.XII. EXAMINED. 179
any other punishment in lieu of it. In respect to
duration, the suffering is next to nothing. It must
therefore, 1 think, be some confused and exao-o- e _
rated notion of the intensity of the pain of death,
especially of a violent death, that renders the idea
of it so formidable. It is not without reason, how
ever, that with respect to the higher class of offen
ders, M. Beccaria considers a punishment of the
laborious kind, moderate we must suppose in its
degree, will make a stronger impression than the
most excruciating kind of death that can be de
vised. But for the generality of men, among those
who are attached to life by the ties of reputation,
iffection, enjoyment, hope, capital punishment
appears to be more exemplary than any other.
5. Though the apparent suffering in the punish
ment of death is at the highest pitch, the real suf
fering is perhaps less than in the larger portion of
afflictive punishment. In addition to their duration
they leave after them a train of evils which injure
the constitution of the patient, and render the
remainder of his life a complication of sufferings.
In the punishment of death the suffering is momen
tary : it is a negation of all sensation.
When the last moment only is considered, penal
death is often more gentle than natural death, and,
so far from being an evil, presents a balance of
The suffering endured must be sought for
in some anterior period. The suffering consists in
apprehension. This apprehension commences from
the moment the delinquent has committed the
crime ; it is redoubled when he is apprehended.
It increases at every stage of the process which
renders his condemnation more certain, and is at
its height in the interval between sentence and
execution.
The more solid argument in favour of the pu-
180 B.II. CH.XII. CAPITAL PUNISHMENT
nishment of death, results from the combined force
of the above considerations. On the one hand, it is
to men in general of all punishment of the greatest
apparent magnitude, the most impressive and the
most exemplary; and on the other hand, to the
wretched class of beings that furnish the most
atrocious criminals, it is less rigorous thanitappears
to be. It puts a speedy termination to an uneasy,
unhappy, dishonoured existence, stript of all true
worth : Heu ! Heu ! quatn male, est extra legem
viventibus.*
SECT II. DESIRABLE PENAL QUALITIES WHICH
ARE WANTING IN CAPITAL PUNISHMENT
1 . The punishment of death is not convertible to
profit : it cannot be applied to the purpose of com
pensation. In so far as compensation might be
derived from the labour of the delinquent, the very
source of the compensation is destroyed.
2. In point of frugality, it is pre-eminently de
fective. So far from being convertible to profit,
to the community it produces a certain loss, both
in point of wealth and strength. In point of
wealth, a man chosen at random is worth to the
public that portion of the whole annual income of
the state which results from its division by the
number of persons of which it consists. The
same mode of calculation will determine the loss
in respect of strength. But the value of a man
who has been proved guilty of some one or other
of those crimes for which capital punishment is
denounced, is not equal to that of a man taken at
random. Of those by whom a punishment of
this sort is incurred, nine out of ten have divested
* Petron Satyr.
B.II.CH.XII. EXAMINED. 181
themselves of all habits of regular industry ; they
are the drones of the hive : and with respect to
them, death is therefore not an ineligible mode of
punishment, except in comparison with confine
ment and hard labour, by which there is a chance
of their being reformed and rendered of some use
to society.
2. Equability is another point, and that a most
important one, in which this punishment is emi
nently deficient. To a person taken at random,
it is upon an average a very heavy punishment,
though still subject to considerable variation. But
to a person taken out of the class of first-rate
delinquents, it is liable to still greater variation.
To some it is as great as to a person taken at ran
dom ; but to many it is next to nothing.
Death is the absence of all pleasures indeed,
but at the same time of all pains. When a person
feels himself under temptation to commit a crime
punishable with death, his determination to com
mit it or not to commit it is the result of the fol
lowing calculation. He ranges on one side the
clear portion of happiness he thinks himself likely
to enjoy in case of his abstaining : on the other,
he places the clear happiness he thinks himself
likely to enjoy in case of his committing the
crime, taking into the account the chance there
appears to him to be, that the punishment threat
ened will abridge the duration of that happiness.
Now then, if in the former case there appears to
be no clear happiness likely to accrue to him,
much more if there appears to be a clear portion
of unhappiness ; in other words, if the clear por
tion of happiness likely to befal him appears
to be equal to*, 0, or much more if it appears to be
* Zero.
182 B.II. CH.XII. CAPITAL PUNISHMENT
negative, the pleasure that constitutes the profit
of the crime will act upon him with a force that
has nothing to oppose it. The probability of see
ing it brought to an abrupt period by death will
subtract more or less from the balance : but at any
rate there will be a balance.
Now this is always the case with a multitude
of malefactors. Rendered averse to labour by
natural indolence or disuse, or hurried away by
the tide of some impetuous passion, they do look
upon the pleasures to be obtained by honest in
dustry as not worth living for, when put in com
petition with the pains : or they look upon life as
not worth keeping, without some pleasure or plea
sures which, to persons in their situation, are not
attainable but by a crime.
I do not say that this calculation is made with
all the formality with which I have represented it.
I do not say that in casting up the sum of pains on
the one side and pleasures on the other, exact care
is always used to take every item into the account.
But however, well or ill, the calculation is made :
else a man could not act as he is supposed to do.
Now then, in all these cases, which unhappily
are but too frequent, it is plain the punishment of
death can be of no use.
It may be said, no more would any other pu
nishment. For any other punishment, to answer
its purpose, must have the effect of deterring or
otherwise disabling the person in question from
committing the like crimes in future. If then he
o
is thus deterred or disabled, he is reduced to a
situation in which, by the supposition, death was
to him an event desirable upon the whole. Being
then in his power, he will produce it.
The conclusion, however, is not necessary.
There are several reasons why the same impulse
B. II. C1I. XII. EXAMINED. 183
which is strong enough to dispose a man to meet
death at the hands of justice should not be strong
enough to dispose him to bring on himself that
event with his own hand.
In the first place, the infliction of it as a pu
nishment is an event by no means certain. It is
in itself uncertain ; and the passion he is supposed
to be influenced by, withdrawing his attention from
the chances that are in favour of its happening,
makes it look still more uncertain.
In the next place, although it were certain, it is
at any rate distant : and the mortification he un
dergoes, from the not possessing the object of his
passion, is present.
Thirdly, Death is attended with much more
pain when a man has to inflict it on himself with
his own hand, than when all he does is simply to
put himself in a situation in which it will be in
flicted on him by the hands of another, or by the
operation of some physical cause. To put himself
in such a situation, requires but a single and sud
den volition, and perhaps but a single act in con
sequence, during the performance of which he
may keep his eyes shut, as it were, against the
prospect of the pain to which he is about to sub
ject himself. The moment of its arrival is at an
uncertain distance. The reverse is the case where
a man is to die by his own hand. His resolution
must be supported during the whole period of
time that is necessary to bring about the event.
The manner is foreseen and the time immediate.
It may be necessary that even after a part of the
pain has been incurred, the resolution should go
on and support itself, while it prompts him to add
further pain before the purpose is accomplished.
Accordingly, when people are resolved upon
death, it is common for them, when they have an
B.II. CH.XIT. CAPITAL PUNISHMENT
opportunity, to choose to die rather by the hand
of another than by their own. Thus Saul chose
to die by the hand of his armour-bearer ; Tiberius
Gracchus by that of his freeman. So again the
Emperor Nero by one of his minions.
Fourthly, when a man is prompted to seek relief
in death, it is not so much by the sudden vehe
mence of some tempestuous passion, as by a close
persuasion that the miseries of his life are likely
to be greater than the enjoyments ; and, in conse
quence, when the resolution is once taken, to rest
satisfied without carrying it immediately into
effect; for there is not a more universal principle of
human conduct, than that which leads a man to
satisfy himself for awhile with the power, without
proceeding immediately, perhaps without proceed
ing ever, to the act. It is the same feeling which
so often turns the voluptuous man to a miser.
Now this is likely enough to be the condition of
those who, instead of death, may have been sen
tenced to another punishment. They defer the exe
cution of their design from hour to hour : sometimes
for want of means, sometimes for want of inclination,
till at last some incident happens that puts in their
heads a train of thought which in the end diverts
them from their resolution. In the mental as well
as in the material part of the human frame, there
is happily a strong disposition to accommodate
itself by degrees to the pressure of forced and
calamitous situations. When a great artery is cut
or otherwise disabled, the circumjacent smaller
ones will stretch and take upon themselves the
whole duty of conveying to the part affected the
necessary supplies. Loss of sight improves the
faculty of feeling. A left hand learns to perform
the offices of the right, or even the feet, of both.
An inferior part of the alimentary canal has learned
B.II.CH.XII. EXAMINED. 185
to perform the office, and even to assume the tex
ture of the stomach.
The mind is endowed with no less elasticity and
docility, in accommodating itself to situations
which at first sight appeared intolerable. In
all sufferings there are occasional remissions,
which in virtue of the contrast are converted into
pleasure. How many instances are there of men
who, having suddenly fallen from the very pinnacle
of grandeur into the gulphs of misery, have, when
the old sources of enjoyment were irrecoverably
dry, gradually detached their minds from all recol
lections of their customary enjoyments, and created
for themselves fresh sources of happiness. The
Comte de Lauzun s Spider, the straw-works of
the Bicetre, the skilfully wrought pieces of carved
work made by the French prisoners, not to men
tion others, are sufficient illustrations of this re
mark.
Variability is a point of excellence in which the
punishment of death is more deficient than in any
other. It subsists only in one degree ; the quan
tity of evil can neither be increased or lessened.
It is peculiarly defective in the case of the greater
part of the most malignant and formidable species
of malefactors that of professed robbers and
highwaymen.*
* " Are you not aware that we are subject to one disease
more than other men ?" said a malefactor upon the rack to his
companion, who shrieked from pain. When one observes the
courage or brutal insensibility, when in the very act of being
turned off, of the greater part of the malefactors that are exe
cuted at Newgate, it is impossible not to feel persuaded that
they have been accustomed to consider this mode of ending
their days as being to them a natural death as an accident or
misfortune, by which they ought no more to be deterred from
their profession than soldiers or sailors are from theirs, by the
apprehension of bullets or of shipwreck.
186 B.I I. CH.XII. CAPITAL PUNISHMENT
4. The punishment of death is not remissible.* Other
species of afflictive punishments it is true are ex
posed to the same objection, but though irremissi-
ble they are not irreparable. For death there is
no remedy.
No man, how little soever he may have attended
to criminal procedure, but must have been struck
at the very slight circumstances upon which the
life of a man may depend ; and who does not
recollect instances in which a man has been in
debted for his safety to the occurrence of some
unlooked-for accident, which has brought his inno-
* There is an evil resulting from the employment of death as
a punishment which may be properly noticed here. It destroys
one source of testimonial proof . The archives of crime are in a
measure lodged in the bosoms of criminals. At their death, all
the recollections which they possess relative to their own crimes
and those of others perish. Their death is an act of impunity
for all those who might have been detected by their testimony,
whilst innocence must continue oppressed, and the right can
never be established, because a necessary witness is subtracted.
Whilst a criminal process is going forward, the accomplices of
the accused flee and hide themselves. It is an interval of
anxiety and tribulation. The sword of justice appears suspended
over their heads. When his career is terminated, it is for them
an act of jubilee and pardon. They have a new bond of secu
rity, and they can walk erect. The fidelity of the deceased is
exalted among his companions as a virtue, and received among
them for the instruction of their young disciples, with praises
for his heroism.
In the confines of a prison this heroism would be submitted to
a more dangerous proof than the interrogatories of the tribunals.
Left to himself, separated from his companions, a criminal ceases
to possess this feeling of honour which unites him to them. It
needs only r. moment of repentance to snatch from him those
discoveries which he only can make ; and without his repentance,
what is more natural than a feeling of vengeance against those
who caused him to lose his liberty, ;md who, though equally cul
pable with himself, yet continue in the enjoyment of liberty !
He need only listen to his interest, and purchase by son;e useful
information some relaxation of the rigour of his punishment.
B.II.CH.XII. EXAMINED. 187
cence to light. The risk incurred is doubtless
greater under some systems of jurisprudence than
under others. Those which allow the torture to
supply the insufficiency of evidence derived from
other sources : those in which the proceedings are
not public, are, if the expression may be used,
surrounded with precipices. But it may be said,
is there or could there be devised any system of
penal procedure which could insure the Judge
from being misled by false evidence or the fallibility
of his own judgment? No; absolute security in
this branch of science is a point which, though it
can never be attained, may be much more nearly
approached than it has hitherto been. Judges
will continue fallible, witnesses to depose falsehood
or to be deceived ; whatever number may depose
to the same fact, the existence of that fact is not
rendered certain ; as to circumstantial evidence, that
which is deemed incapable of explanation, but by
supposing the existence of the crime, may be the
effect of chance or of arrangements made with the
view of producing deception. The only sort of
evidence that appears entitled to perfect conviction,
is the voluntary confession of the crime by the
party accused, but this is not frequently made,
and does not produce absolute certainty, since
instances have not been wanting, as in the case of
witchcraft, in which individuals have acknow
ledged themselves guilty, when the pretended
crime was impossible.
These are not purely imaginary apprehensions
drawn from the region of possibility : the criminal
records of every country afford various instances
of these melancholy errors ; and these instances,
which, by the concurrence of a number of extra
ordinary events have attained notoriety, cannot fail
188 B.II.CH.XII. CAPITAL PUNISHMENT
to excite a suspicion, that though unknown, many
other innocent victims may have perished.
It must not be forgotten either, that the cases in
which the word evidence is most apt to be em
ployed, are not unfrequently those in which the
testimony adduced is exposed to most suspicion.
When the pretended crime is among the number
of those that produce antipathy towards the offen
der, or which excite against him a party feeling,
the witnesses almost unconsciously act as accusers.
They are the echoes of the public clamour. The
fermentation goes on increasing, and all doubt is
laid aside. It was a concurrence of such circum
stances which seduced first the people and then
the Judges in the melancholy affair of Calas.
These melancholy cases in which the most vio
lent presumptions, which fall little short of absolute
certainty, are accumulated against an individual
whose innocence is afterwards recognized, carry
with them their own cause : they are the cruel
effects of chance, and do not altogether destroy
public confidence. To produce any such effect
we must be able to detect in such erroneous deci
sions proofs of temerity, ignorance, and precipita
tion, an obstinate and blind adherence to vicious
forms, and of those determined prejudices which
the very situation of Judge is apt to generate. A
Judge, whose business it is to deal with human
nature in its worst forms, having daily before his
eyes the false pretences and mendacity to which
the guilty have recourse, perpetually contriving
expedients for unveiling imposture, gradually
ceases to believe in the innocence of those accused,
and by anticipation expects to find a criminal using
all his arts to deceive him. That it is the charac
ter of all Judges to be actuated by these prejudices
B.II.CH.XII. EXAMINED. 189
I am far from thinking ; but when the propriety of
arming men with the power of inflicting the punish
ment of death is the question under consideration,
it ought not to be forgotten, before putting into
their hands the fatal weapon, that they are not
exempted from the weaknesses of humanity, that
their wisdom is not increased, neither are they
rendered infallible by thus arming them.
The danger attending the use of capital punish
ment appears in a more striking point of view
when we reflect on the use that may be made of
it by men in power, to gratify their passions, by
means of a Judge easily intimidated or corrupted.
In such cases, the iniquity covered with the robe
of justice may escape, if not all suspicion, at
least the possibility of proof. Capital punish
ment, too, affords to the prosecutor as well as to
the Judge, an advantage that in all other modes
is wanting : I mean greater security against de
tection, by stifling by death all danger of disco
very arising from the delinquent, at least : while he
lives, to whatever state of misery he may be
reduced, the oppressed may meet with some for
tunate event by which his innocence may be
proved, and he may become his own avenger.
A judicial assassination, justified in the eyes of
the public by a false accusation, with almost com
plete certainty assures the triumph of those who
have been guilty of it. In a crime of an inferior
degree, they would have had everything to fear ;
but the death of the victim seals their security.
If we reflect on those very unfrequent occur
rences, but which may at any time recur, those
periods at which the Government degenerates into
anarchy and tyranny, we shall find that the
punishment of death, established by law, is a
weapon ready prepared, which is more susceptible
188 B.H.CH.XII. CAPITAL PUNISHMENT
to excite a suspicion, that though unknown, many
other innocent victims may have perished.
It must not be forgotten either, that the cases in
which the word evidence is most apt to be em
ployed, are not unfrequently those in which the
testimony adduced is exposed to most suspicion.
When the pretended crime is among the number
of those that produce antipathy towards the offen
der, or which excite against him a party feeling,
the witnesses almost unconsciously act as accusers.
They are the echoes of the public clamour. The
fermentation goes on increasing, and all doubt is
laid aside. It was a concurrence of such circum
stances which seduced first the people and then
the Judges in the melancholy affair of Calas.
These melancholy cases in which the most vio
lent presumptions, which fall little short of absolute
certainty, are accumulated against an individual
whose innocence is afterwards recognized, carry
with them their own cause : they are the cruel
effects of chance, and do not altogether destroy
public confidence. To produce any such effect
we must be able to detect in such erroneous deci
sions proofs of temerity, ignorance, and precipita
tion, an obstinate and blind adherence to vicious
forms, and of those determined prejudices which
the very situation of Judge is apt to generate. A
Judge, whose business it is to deal with human
nature in its worst forms, having daily before his
eyes the false pretences and mendacity to which
the guilty have recourse, perpetually contriving
expedients for unveiling imposture, gradually
ceases to believe in the innocence of those accused,
and by anticipation expects to find a criminal using
all his arts to deceive him. That it is the charac
ter of all Judges to be actuated by these prejudices
B.II.CH.XII. EXAMINED. 189
I am far from thinking ; but when the propriety of
arming men with the power of inflicting the punish
ment of death is the question under consideration,
it ought not to be forgotten, before putting into
their hands the fatal weapon, that they are not
exempted from the weaknesses of humanity, that
their wisdom is not increased, neither are they
rendered infallible by thus arming them.
The danger attending the use of capital punish
ment appears in a more striking point of view
when we reflect on the use that may be made of
it by men in power, to gratify their passions, by
means of a Judge easily intimidated or corrupted.
In such cases, the iniquity covered with the robe
of justice may escape, if not all suspicion, at
least the possibility of proof. Capital punish
ment, too, affords to the prosecutor as well as to
the Judge, an advantage that in all other modes
is wanting : I mean greater security against de
tection, by stifling by death all danger of disco
very arising from the delinquent, at least: while he
lives, to whatever state of misery he may be
reduced, the oppressed may meet with some for
tunate event by which his innocence may be
proved, and he may become his own avenger.
A judicial assassination, justified in the eyes of
the public by a false accusation, with almost com
plete certainty assures the triumph of those who
have been guilty of it. In a crime of an inferior
degree, they would have had everything to fear ;
but the death of the victim seals their security.
If we reflect on those very unfrequent occur
rences, but which may at any time recur, those
periods at which the Government degenerates into
anarchy and tyranny, we shall find that the
punishment of death, established by law, is a
weapon ready prepared, which is more susceptible
192 B.II. CH.XII. CAPITAL PUNISHMENT
injured not to prosecute the offenders, for fear of
bringing them to the scaffold ; a disposition on the
part of the public to favour their escape ; a dispo
sition on the part of the witnesses to withhold
their testimony, or to weaken its effect ; a disposi
tion on the part of the Judges to allow of a merci
ful prevarication in favour of the accused ; and all
these anti-legal dispositions render the execution
of the laws uncertain, without referring to that loss
of respect which follows upon its being considered
meritorious to prevent their execution.
SECT. III. RECAPITULATION AND COMPARISON OF
THE PUNISHMENT OF DEATH, WITH THOSE
PUNISHMENTS WHICH MAY BE SUBSTITUTED
FOR IT.
The punishment of death, it has been observed,
possesses four desirable properties.
1 . It is in one case analogous to the offence.
2. In that same case it is popular.
3. It is in the highest degree efficacious in pre
venting further mischief from the same source.
4. It is exemplary, producing a more lively im
pression than any other mode of punishment.
The two first of these properties exist in the
case of capital punishment when applied to mur
der ; and with reference to that species of offence
alone are they sufficient reasons for persevering in
its use ; certainly not : each of them, separately
considered, as of very little importance. Analogy
is a very good recommendation, but not a good
justification. If in other respects any particular
mode of punishment be eligible, analogy is an
additional advantage : if in other respects it be
ineligible, analogy alone is not a sufficient recom
mendation : the value of this property amounts to
B.ll. CII. Xlf. EXAMINED. 193
very little, because, even in the case of murder,
other punishments may be devised, the analogy
of which will be sufficiently striking.
In respect also of popularity, the same observa
tions apply to this mode of punishment. Every
other mode of punishment that is seen to be equally
or more efficacious will become equally or more
popular. The approbation of the multitude will
naturally be in proportion to the efficacy of the
punishment.
The third reason, that it is efficacious in prevent
ing further mischief from the same source, is some
what more specious, but not better founded. It
has been asserted, that in the crime of murder it
is absolutely necessary; that there is no other
means of averting the danger threatened from that
class of malefactors. This assertion is, however,
extremely exaggerated : its groundlessness may
be seen in the case of the most dangerous species
of homicide. Assassination for lucre, a crime
proceeding from a disposition which puts indiscri
minately the life of every man into immediate
jeopardy. Even these malefactors are not so
dangerous nor so difficult to manage as madmen ;
because the former will commit homicide only at
the time that there is something to be gained by it,
and that it can be perpetrated with a probability
of safety. The mischief to be apprehended from
madmen is not narrowed by either of these circum
stances. Yet it is never thought necessary that
madmen should be put to death. They are not
put to death : they are only kept in confinement ;
and that confinement is found effectually to
answer the purpose.
In fine, I can see but one case in which it can
be necessary, and that only occasionally : in the
case alleged for this purpose by M. Beccaria,
o
194 B.II. CH.XII. CAPITAL PUNISHMENT.
the case of rebellion or other offence against
government of a rebellious tendency, when, by
destroying the chief you may destroy the faction,
where discontent has spread itself widely through
a community, it may happen that imprisonment
will not answer the purpose of safe custody. The
keepers may be won over to the insurgent party,
or if not won over, they may be overpowered.
They may be won over by considerations of a con
scientious nature, which is a danger almost pecu
liar to this case ; or they may be won over by
considerations of a lucrative nature, which danger
is greater in this case than in any other, since
party projects may be carried on by a common
purse.
What, however, ought not to be lost sight of in
the case of offences of a political nature is, that if
by the punishment of death one dangerous enemy
is exterminated, the consequence of it may be the
making an opening for a more formidable succes
sor. Look, said the executioner, to an aged Irish
man, shewing him the bleeding head of a man
just executed for rebellion : " Look at the head of
your son." " My son (replied he) has more than
one head." It would be well for the legislator be
fore he appoints capital punishment, even in this
case, to reflect on this instructive lesson.
The fourth reason is the strongest. The punish
ment of death is exemplary, pre-eminently exem
plary : no other punishment makes so strong an
impression.
This assertion, as has been already noticed, is
true with respect to the majority of mankind, it is
not true with respect to the greatest criminals.
It appears however to me that the contemplation
of perpetual imprisonment, accompanied with hard
labour and occasional solitary confinement, would
B.II. CH.XII. EXAMINED. 195
produce a deeper impression on the minds of per
sons in whom it is more eminently desirable that
that impression should be produced, than even
death itself. We have already observed that to
them life does not offer the same attractions as it
does to persons of innocent and industrious habits.
Their very profession leads them continually to
put their existence in jeopardy ; and intemperance,
which is almost natural to them, inflames their
brutal and uncalculating courage. All the circum
stances that render death less formidable to them,
render laborious restraint proportionably more
irksome. The more their habitual state of exis
tence is independent, wandering, and hostile to
steady and laborious industry, the more they will
be terrified by a state of passive submission and
of laborious confinement, a mode of life in the
highest degree repugnant to their natural incli
nations.
Giving to each of these circumstances their due
weight, the result appears to be that the prodigal
use made by legislators of the punishment of death
has been occasioned more by erroneous judgments
[arising from the situation in which they are
placed with respect to the other classes of the
community] than from any blameable cause.
Those who make laws belong to the highest
classes of the community, among whom death is
considered as a great evil, and an ignominious
death as the greatest of evils. Let it be confined
to that class, if it were practicable, the effect
aimed at might be produced ; but it shews a total
want of judgment and reflection to apply it to a
degraded and wretched class of men, who do not
set the same value upon life, to whom indigence
and hard labour is more formidable than death,
196 B.II. CH.XII. CAPITAL PUNISHMENT
and the habitual infamy of whose lives renders
them insensible to the infamy of the punishment.
If, in spite of these reasons, which appear to be
conclusive, it be determined to preserve the pu
nishment of death, in consideration of the effects it
produces in terrorum, it ought to be confined to
offences which, in the highest degree, shock the
public feeling for murders, accompanied with
circumstances of aggravation, and particularly
when their effect may be the destruction of num
bers ; and in these cases expedients by which it
may be made to assume the most tragic appear
ance may be safely resorted to, in the greatest
extent possible, without having recourse to com
plicated torments.
SECT. IV. COLLATERAL EVIL EFFECTS OF THE
FREQUENT USE OF THE PUNISHMENT OF DEATH.
The punishment of death, when applied to the
punishment of offences in opposition to public
opinion, far from preventing offences, tends to
increase them by the hope of impunity. This
proposition may appear paradoxical ; but the
paradox vanishes when we consider the different
effects produced by the unpopularity of the
punishment of death. In the first place it relaxes
prosecution in criminal matters, and in the next
place foments three vicious principles. 1. It
makes perjury appear meritorious, by founding it
on humanity ; 2. it produces contempt for the
laws, by rendering it notorious that they are not
executed ; 3. it renders convictions arbitrary and
pardons necessary.
The relaxation of criminal procedure results
from a series of transgressions on the part of the
B.IJ. CM. XII. EXAMINED. 197
different public functionaries, whose concurrence
is necessary to the execution of the laws : each
one alters the part allotted to him, that he may
weaken or break the legal chain by which he is
bound, and substitute his own will for that of the
legislator ;* but all these causes of uncertainty in
criminal procedure are so many encouragements
to malefactors.
* " Observe that juryman in a blue coat," said one of the
Judges at the Old Bailey to Judge Nares. " Do you see him?"
" Yes." " Well there will be no conviction of death to-day."
And the observation was confirmed by the fact.
RATIONALE OF PUNISHMENT.
BOOK III.
OF PRIVATIVE PUNISHMENTS, OR FORFEITURES.
CHAPTER I.
PUNISHMENT ANALYZED.
WE now come to the last of the two grand divi
sions of Punishments Privative Punishments, or
Forfeitures.
The word forfeiture is never used but with refer
ence to some possession.*
* As all our ideas are derived ultimately from the senses,
almost all the names we have for intellectual ideas, seem to be
derived ultimately from the names of such objects as afford
sensible ideas : that is, of objects that belong to one or other of
the three classes of real entities. Insomuch that, whether we
perceive it or no, we can scarce express ourselves on any occa
sion but in metaphors. A most important discovery this in the
metaphysical part of grammar, for which we seem to be in
debted to M. d Alembert. See his Melanges, torn. 1,
Disc. Prelim, #c.
The way in which the import of the word forfeiture is con
nected with sensible ideas seems to be as follows : the words to
forfeit come either immediately, or through the medium of the
old French, from the modern Latin word forisfacere. Foris
means out of doors, or out of the house ; facere, is to make or
B.III.CH.I. PUNISHMENT ANALYZED. 199
Possessions are either substantial or ideal sub
stantial when it is the object of a real entity (as a
house, a field) ideal, when it is the object of a
fictitious entity (as an office, a dignity, a right.)
The difficulty of dealing with cases of this de
scription will immediately be seen. Real entities
have all a common genus, to wit, substance. Ficti
tious entities have no such common genus, and can
only be brought into method in virtue of the rela
tion they bear to real objects.
Possessions, of whatsoever nature they be, whe
ther real or fictitious, are valuable ; and to forfeit
them can never otherwise be a punishment, than
as far as they are instruments of pleasure or secu
rity. By specifying then the sort of persons or
things from which the benefit said to belong to a
fictitious possession is actually derived, all will be
done that can be done towards giving a metho
dical view of those possessions, and of the penal
consequences of forfeiting them.*
to cause to be. The conceit then is that, when any object is in
a man s possession, it is as it were within doors ; within his
house; any act, therefore, which, in consequence of some ope-
tion of the law, has the effect of causing the object to be no
longer in his possession, has the effect of causing it, as it were,
to be out of his doors, and no longer within his house.
* Forfeiture is, in some cases, though rarely, applied to corporal
punishments. Thus capital punishment is called forfeiture of life ;
mutilation, forfeiture of limbs or members. It is also, with the
addition of the word liberty, applied to corporal punishments of
the restrictive classes, as in the case of imprisonment and quasi
imprisonment. The other modes of confinement require fur
ther additions to be made to them : as to express foreign banish
ment, forfeiture of the liberty of residing in any part of the domi
nions of the state : to express domestic banishment, forfeiture of
the liberty of being any longer in the place of his abode. The
infinite variety of specific restraints may also be expressed by
the phrase of forfeiture of liberty, with so many different addi
tions : forfeiture of the liberty of exercising such or such an
operation, forfeiture of the liberty of pleading, &c.
200 B.I1I. CH.I. PUNISHMENT ANALYZED.
To investigate, therefore, the several kinds of
proper forfeitures, it is necessary to investigate
the several kinds of possessions. On this subject,
however, as it comes in only collaterally on the
present occasion, it will not be necessary to insist
very minutely.
Possessions are derived either from things only,
or from persons only ; or from both together.
Those of the two first sorts may be styled simple
possessions : those of the other complex.
Possessions derived from things may consist
either 1. in money : these may be called pecu
niary; 2. in other objects at large. The former
may be styled pecuniary, the latter quasi-pecu
niary. Accordingly, forfeiture of money may be
styled pecuniary forfeiture : forfeiture of any other
possession derived from things, quasi-pecuniary.
Quasi-pecuniary forfeitures are capable of a va
riety of divisions and subdivisions : but as these
distinctions turn upon circumstances that make no
difference in the mode of punishment, it will not
be necessary, on the present occasion, to enter into
any such detail.
Possessions derived from persons, consist in the
services rendered by those persons. Services may
be distinguished into exigible and ineligible. By
exigible I mean such as a man may be punished
(to wit, by the political sanction) for not rendering ;
by inexigible, such as a man cannot be punished
for not rendering ; or, if at all, not by any other
sanction than either the moral or the religious.*
* To services inexigible, but by the force of these auxiliary
sanctions, correspond what are called imperfect rights. What
ever right a man may have to a service, which the party is not
punishable by law for not, rendering him, is what is culled by
writers on the pretended law of nature, an imperfect right; and
the obligation to render any such service, an imperfect obli
gation.
B.III.CH.I. PUNISHMENT ANALYZED. 201
The faculty of procuring such as are exigible is
commonly called power, to wit power over per
sons : the facuky or chance of procuring such as
are inexigible depends, in great measure, upon
reputation; hence result two farther kinds of for
feiture : forfeiture of power and forfeiture of repu
tation.*
Reputation may be distinguished into natural
and factitious ; by factitious I mean that which is
conferred by rank or dignity.
Credibility is a particular species of reputation :
the reputation of veracity. Hence we have two
further kinds of forfeiture, both subordinate to that
of reputation: forfeiture of rank or dignity, and
forfeiture of credibility.
As to complex possessions, and the forfeitures
that relate to them, these are too heterogeneous to
be arranged in any systematic method : all that
can be done is to enumerate them. Thus much
only may be said of them in general, that the in
gredients of each of them are derived from both
the classes of objects which we have mentioned as
being the sources from which the several kinds of
simple forfeitures are derived.
It should seem, however, that they might all
of them, without any great violence, be brought
under the title of conditions. Conditions then may
in the first place be distinguished into ordinary
and peculiar.
Ordinary conditions or modes of relationship,
may be distinguished into natural and acquired.
* Of services that are altogether inexigible, such as are strictly
spontaneous, gratuitous, depend altogether upon goodwill :
upon the goodwill of the party rendering them to the party to
whom they are rendered. This goodwill depends, in great mea
sure, upon the reputation of the party to whom they are ren
dered.
202 B.IIl. CH.I. PUNISHMENT ANALYZED.
By natural conditions I mean those which neces
sarily belong to a man by birth : to wit in virtue
of either his own birth or that of some other per
son to whom he stands related. Such as that of
son, daughter, father, mother, brother, sister, and
so on through the several modes of relationship,
constituted by the several degrees of consangui
nity. To stand in any of these relations to such
or such a person may be the source of various
advantages. These conditions, it is plain, cannot
themselves be forfeited ; a man, however, may,
and in some instances has been said to have for
feited them, and may actually be made to forfeit
many of the advantages attending them.
Acquired conditions may be distinguished in
the first place into political and religious ; and
political again into domestic and public. Domestic
conditions maybe distinguished into family condi
tions and professional. Family conditions are
1st. The matrimonial ; or that of being husband
or wife to such a person ; 3d and 4th, that of
being guardian or ward ; 5th and 6th, that of
being master or servant to such a person.
By public political condition, I mean that of
belonging to any voluntary society of men insti
tuted on any other than a religious account.
By religious condition, I mean that of belonging
to any society or sect instituted for the sake of
joining in the performance of religious ceremonies.
Of conditions that may be termed peculiar, the
several sorts may, it should seem, be all com
prised under the head either 1st. of conditions con
stituted, either 1st, by offices ; or 2dly, by corpo
ration privileges. A right of exercising an office
is an exclusive right to render certain services.
Conditions constituted by offices may be ranked
in the number of complex possessions, inasmuch
B.III. CH.l. PUNISHMENT ANALYZED. 203
as they are apt to include the three simple pos
sessions following : to wit, a certain share of
power, a certain rank, and a certain salary, or fees
or other emoluments coming under the head of
pecuniary or quasi-pecuniary possessions.
Of offices there is an almost infinite variety of
kinds, and a still greater variety of names, accord
ing to the almost infinite modifications of rank and
power in different countries, and under different
governments. This head is, consequently, sus
ceptible of a great variety of divisions and subdi
visions ; but these it will not be necessary, on the
present occasion, to consider.
Corporations may be distinguished into politi
cal and religious. Under the head of religious cor
porations may be included the various monastic
orders established in countries professing the
Roman Catholic religion.
As to political corporations, the catalogue of the
possessions that may be annexed to the condition
of one who is a member of those bodies are so
various, that no other account need, on the present
occasion, or indeed can be given of it, than that
there are scarce any of the simple possessions
above enumerated, but may be included in it.*
To the condition of one who is a member of a
religious order or corporation may be annexed,
besides the above possessions others, the value
whereof consists in such or such a chance as they
may appear to confer of enjoying the pleasures of
a future life, over and above such chance of enjoying
the same pleasures as appears to be conferred by
* A share beneficial or fiduciary in the use, of such a quantity
of money, of such an estate in land : a share in such an office
of power or trust : an exemption from such a tax or other public
burthen : the exclusive privilege of such or such an occupation.
204 B.1II.CH.I. PUNISHMENT ANALYZED.
the condition or privilege of being an ordinary pro
fessor of the same religion.
As an appendix to the above list of possessions
may be added two particular kind of possessions,
constituted by the circumstance of contingency, as
applied in different ways to each one in that list.
These are the legal capacity of acquiring, as
applied to those articles respectively, and the
protection of the law, whereby a man is secured
against the chance of losing them, if acquired.
These abstract kinds of possessions form the sub
ject of so many kinds of forfeiture : forfeiture of
legal capacity and forfeiture of the protection of
the law : forfeiture of legal capacity with respect
to any possession, taking away from a man what
ever chance he might have of acquiring it ; for
feiture of protection, subjecting him to a particular
chance of losing it.*
* Forfeiture of protection may be considered also, in another
point of view, as being the forfeiture of the services of such
ministers of Justice, whose office it is to afford a man protection in
the enjoyment of the possession in question.
205
CHAPTER II.
OF THE PUNISHMENTS BELONGING TO THE MORAL
SANCTION*.
PUNISHMENTS of this class admit of no distinc
tions : and this, however paradoxical it may seem,
from no other reason than their extreme variety.
The way in which a man suffers who is punished
by the moral sanction is, by losing a part of that
share which he would otherwise possess of the
esteem or love of such members of the community
as the several incidents of his life may lead him to
have to do with. Now it is either from the
esteem they entertain for him, or the love they
bear him, or both, that their good-will towards him,
in a great measure, depends : moreover, the way in
which this good-will displays itself, is by disposing
the person who entertains such affection, to render
good offices, and to forbear doing ill offices (or in
other words, to render ineligible services} to the
party towards whom it is entertained ; the way in
which the opposite affection, ill-will^ displays it
self, is accordingly by disposing the former to
forbear doing good offices, and if it has risen to a
certain degree, by disposing him to render ill-
offices, as far as may be consistent with his own
safety, to the latter.
Now then, from the good offices of one
man to another, may all sorts of possessions,
and through them, or even more immediately,
all sorts of pleasures, be derived. On the other
hand, from the withholding of the good offices
one man might have expected from another,
may all sorts of pains, and death itself, be also
20G B.III. CH.II. OF PUNISHMENTS BELONGING
derived ; much more may they from positive ill-
offices added to those other negative ones. And
what are the good offices which you may be dis
posed to withhold from me, or the ill offices you
may be disposed to do me, from my having be
come the object of your ill-will? It is plain not
one or other particular species of good or ill office,
but any species whatever, just as occasion serves,
that shall be proportionate to the strength of your
ill-will and consistent with your own safety. This
consideration will make our work short under the
head which respects the several modes or species
of punishment subordinate to the mode in ques
tion.
The same consideration will make it equally
short under the second head, relative to the evils
producible by the mode or modes of punishment
in question. These, it must have been already
seen, may be all sorts of evils : all the different
sorts of evils which are producible by any of the
punishments belonging to the political sanction ;
by any punishments properly so called : in a
word, all the different sorts of evils to which
human nature is liable.
But though the punishments belonging to the
moral sanction admit not of any varieties that are
separable from one another, there are two distinct
parcels, as it were, into which the evils produced
by any lot of punishment issuing from this source,
on the occasion of any offence, may be divided.
One (which, as being the basis of the other, may
be mentioned first, though the last in point of
time) consists of the several contingent evils that
may happen to the offender in consequence of the
ill-will he has incurred ; the other consists of the
immediate pain or anxiety, the painful sense of
shame, which is grounded on the confused ap-
B.III. CH.II. TO THE MORAL SANCTION. 207
prehension of the unliquidated assemblage of evils
above-mentioned. It is this last which is referable
in a peculiar manner to the moral sanction, and
which cannot be produced by the political, any
otherwise than as far as those who have the ma
nagement of that sanction can gain an influence
over the moral : it may therefore, for distinction
sake, be styled the characteristic evil of the moral
sanction. This must obtain, in a greater or less
degree, upon every instance of detected delin
quency, unless in those callous and brutish na
tures, if any such there be, in whom all sense of
disgrace, and all foresight of the consequences, is
utterly extinguished. The others above spoken
of may be styled the casual evils.
These casual evils, (as we have already inti
mated) owing to their extreme uncertainty, admit
not of any determinate variations in point of qua
lity ; in point of quantity, however, they do admit
of some distinctions resulting from, 1st, their
Intensity ; 2dly, their Extent. This distinction
ought not to be overlooked, since we shall have
occasion to make frequent application of it to
practice.
These two lots of evils, howsoever distinguishable,
intermix with and aggravate one another. I have
done an immoral act : I am discovered : I perceive
as much. Now then, before I happen to have
occasion to avail myself of the good offices of such
of my acquaintance as come to know of it, before I
happen to be in a way to suffer from the denial of
those good offices, in a word, before I have expe
rienced any of the casual evils annexed by the
moral sanction to my delinquency, I already foresee
more or less clearly, and apprehend more or less
strongly, the loss of those good offices and of that
good will : I feel the painful sense of shame, the
208 B.III.C1I.II. OF PUXISHMENTS BELONGING
pain of ignominy ; I experience, in a word, the
characteristic evil of the moral sanction as the
punishment of my misbehaviour. This sense of
shame stamps the marks of guilt upon my deport
ment. This being the case, either out of despair
I avoid my acquaintance, or else I put myself in
their way. If I avoid them, I by that means
already deprive myself of their good offices : if 1
put myself in their way, the guilt which is legible
in my countenance, advertises and increases their
aversion : they either give an express denial to my
request, or what is more common, anticipate it by
the coldness of their behaviour. This reception
gives fresh keenness to the sting of shame, or (in
the systematical language I have ventured to make
use of,) the experiment I have made of the casual,
evils adds force to the characteristic evils of this
sanction.
We have already intimated the distinction be
tween positive and negative ill offices ; to the
former, and even in a few instances to the latter, it
is the duty, and a great part of the business, of the
political magistrate to set limits. These limits,
however, may come accidentally to be transgressed,
as there are scarce any laws that can be made but
what may come accidentally to be disobeyed. On
this account, the evils that may result from this
source remain still undeterminate and unlimited.
But were the laws that might be made in this
behalf ever so certain in their operation, those evils
would still remain indeterminate and unlimited,
notwithstanding. For so uncertain and unforesee
able may be the connection between the refusal of
a good office, and the miseries which in particular
circumstances may be the consequences of such
a refusal, that no law could make a secure provi
sion against those miseries in every case, without
B.III.CH.II. TO THE MORAL SANCTION. 209
such a subversion of all liberty and all property as
would produce much greater miseries. Your
giving me a shilling to buy me food, or taking me
twenty miles to a physician, may on a critical
occasion save me from an excruciating disease ;
but no law, without leaving it to the determination
of the person in want, can with sufficient certainty
describe such occasions ; nor can any law, without
depriving you of all liberty and all property, oblige
you to give money to, or take a journey for every
man who shall determine himself to be in want of
such assistance.
Howsoever this be with regard to negative ill
offices, positive ill offices not only may be limited,
but in most cases may be and commonly are for
bidden. In no settled state of government is pri
vate displeasure permitted to rise so high as to vent
itself indiscriminately in any of those direct ways of
inflicting pain which the political magistrate himself
may have thought it expedient to recur to. How
ever flagrantly immoral may have been the conduct
of a delinquent, persons at large are never per
mitted, of their own authority, to punish him by
beating or maiming, or putting him to death.
Positive ill offices may be divided into such as
display themselves in actions at large, and such
as display themselves in discourse. Now, it is
to speech that the latitude which is still left to
the right of rendering positive ill offices in a direct
way, is principally confined :* and even this
right is commonly subject to a number of limi
tations. But ill offices which are confined to
* I am conscious that the distinction here stated, between
the direct and indirect way of rendering ill offices is far enough
from being explicit; but there would be no way of making it
so without despatching a large and intricate title of the doc
trine of offences.
210 B.III. CH.II. OF PUNISHMENTS BELONGING
speech are not, if they stop there, productive of
any evil. When they are, it is ultimately by dis
posing other persons to entertain a displeasure
against the same person, and manifest it by ac
tions of another kind. If then such positive ill
offices as display themselves in actions at large be
excluded, all that remains is resolvable ultimately
into negative ill offices. And of these, those which
a delinquent has in ordinary cases to apprehend
amount only to such as are not illegal.
Nor is even this a contemptible and inconsider
able source of suffering. Dependent as men in a
state of society are upon one another, the punish
ment derived from the source in question, even
when narrowed by all these restrictions, may, and,
indeed, frequently does rise to a tremendous
height. It admits of no evasion : it comes upon
a man from all quarters : he can see no end to its
duration, nor limits to its effects. It is not un
usual for it to bereave him of the chief pleasures
and sources of profit he has set his heart upon : it
may deprive him of all those profits and enjoy
ments he had been accustomed to expect at the
hands of his friend or his patron : by setting his
common acquaintance at a distance from him, it
may fill the detail of his life with a perpetual
train of disappointments and rebuffs. It leaves
him joyless and forlorn : and, by drying up the
source of every felicity it embitters the whole
current of his life.
Were we indeed to enquire minutely into the dis
tinction between the nature of the political and
moral sanctions, it would come out that, of the
evils which when considered as issuing from the
moral sanction I have stiled casual evils, some are
even more likely to be brought upon a man by the
action of one of these sanctions, and some others
B.I1I. CH.II. TO THE MORAL SANCTION. 211
by that of the other. But as to the species of
evil, this is all the distinction we shall be able to
make out; for there is not any evil which the
exertion of one of these forces may bring upon a
man, but which may also be brought upon him by
the action of the other.
The most studied and artificial torments, for
instance, that can be invented by a political ma
gistrate, and the most unlikely for a man to be
exposed to suffer by the unassisted powers of
nature, or even from the unauthorised resentment
of an individual, are what he may by accident be
exposed to from the latter source. It may be for
want of some evidence that an individual might
furnish, and from ill-will forbears to furnish, that
I may have been doomed to these torments by a
Judge ; or if the like torments be supposed to be
inflicted by the unauthorized violence of an ene
my, they may be attributed in the first place
indeed to the vengeance of that enemy; but in the
second place, to the dis-esteem and ill-will borne
me by some stranger, who having it in his power
to rescue me, yet exasperated against me on
account of some real or supposed instance of im
morality in my behaviour, chose rather to see me
suffer than to be at the pains of affording me his
assistance.
On the other hand, the whole sum of the evils
depending upon the moral sanction, to wit, not
only the casual evils, but the sense of infamy
which constitutes the characteristic evil, is liable
in many instances to be brought upon a man by
the doom of the political magistrate. This is what
we have found it unavoidably necessary, on
various occasions, to give intimation of, and what
we shall have need more particularly to enlarge
upon hereafter.
212 B.III.CH.II. OF PUNISHMENTS BELONGING
3. It is in the manner, then, in which the evils
that come alike under the department of each of
the two sanctions come to be inflicted, that the
only characteristic difference discernible between
these two sanctions are to be seen. With regard
to punishment issuing from the political sanction,
the species, the degree, the time, the place, the
person who is to apply it, are all assignable.
With regard to that which may issue from the
moral sanction, none of these particulars are assign
able.
When I say assignable, I must be understood
to speak with reference to some particular time
coincident with or subsequent to that of the com
mission of the offence. At that very time, then,
with respect to political punishment, that is, with
respect to personal punishments and forfeitures,
many of those particulars, and sometimes all of
them, are assignable, and may be foreseen. At
the time the offence, theft suppose, is committing,
it may be foreseen that a number of stripes given
with such an instrument, not more than so many
nor fewer than so many, will be inflicted (in case
of detection) so many days or weeks hence, at
such a place and by the hands of such an execu
tioner : and vice versa, when they come to be in
flicted, the punishment will be seen to be the
consequence of such an offence. Now when the
organical pain produced by the punishment thus in
flicted is over, all the punishment for that oflence,
as far as depends upon the political sanction, is
commonly over and at an end. But as to the ill
offices, as well negative as positive, which consti
tute the substance and groundwork of the moral
sanction, no man can tell what they will be, what
particular evils they will subject a man to, when
they will commence, or when they will end,
B.III. CI1.II. TO THE MORAL SANCTION. 213
where they will display themselves, nor who will
render them. Nor vice versa, when they have
actually been rendered, when such or such a
neighbour has shut his door against me, and I am
pining with hunger or shivering with cold, can I
always know for certain that the immorality I was
guilty of at such or such a time was the occasion
of his unkindness. In a word, dcterminateness is
the perfection of the punishments belonging to the
political sanction : j/zdeterminateness is the very
essence of those issuing from the moral.
A word or two may be of use in this place with
respect to the nomenclature employed in speaking
of the punishments belonging to this sanction.
The expressions made use of on this occasion are
singularly various : a whole legion of fictitious
entities are created for the purpose of representing
the one fundamental idea in question, under the
different aspects of which it is susceptible. The
names of these fictitious entities are many of them
disparate ; they require different sets of words to
enable them to make a meaning : and the coinci
dence lies not between the import of these names
when separately taken, but between certain sen
tences or propositions, in which they may respec
tively be made to bear a part. Among these
words may be reckoned reputation, honour, cha
racter, good name, dishonour, shame, infamy, igno
miny, disgrace, aversion, and contempt. In
speaking then of a man as suffering under a pu
nishment of the moral sanction, it may be more or
less convenient, according to the occasion, to use
amongst others any of the following expressions.
We may say that he has forfeited his reputation,
his honour, his character, his good name ; that his
fame has been tarnished ; that his honour, his
character, or his reputation has received a stain ;
214 B.IIT.CH.II. OF PUNISHMENTS BELONGING
that he stands disgraced ; that he has become
infamous ; that he has sunk under a load of infamy,
ignominy, or disgrace ; that he has fallen into dis
grace, into dis-esteem, into disrepute ; that he has
incurred the ill-will, the aversion, the contempt of
the neighbourhood, of the public; that he is be
come an object of aversion or contempt. It were
the task rather of the lexicographer than the jurist
to exhaust the catalogue of these expressions.
Those which have been already exhibited may be
sufficient to advertise the reader of the similarity
there may be in point of sense between a variety
of other expressions of like import, however dissi
milar they may be in sound.
Hitherto we have considered the punishment
belonging to the moral sanction in no other point
of view than that in which it appears when stand
ing singly, uncombined with and uninfluenced by
the political. In this state the direction given to
it, and the force with which it acts, are deter
mined altogether by the persons to whom it be
longs ultimately to dispense it, unassisted and
uncontrolled by the political magistrate. In this
state it acted before the formation of political
society, before the creation of that artificial body
of which the political magistrate is the head. In
this state, by its connection with the various
modes of conduct which happened to be employed
to prohibit or to recommend, it gave birth to that
fictitious set of rules which are what some mo
ralists have sometimes at least in view, when they
speak of the law of nature. In this state it was
an engine, to the power of which the political
magistrate was a witness, before the construction
of that which is of his own immediate workman
ship. It then was, it still is, and it ever must be,
an engine of great power in whatever direction it
B.1II. CH.II. TO THE MORAL SANCTION. 215
be applied ; whether it be applied to counteract
or to promote his measures. No wonder then he
should have sought by various contrivances to
press it into his service. When thus fitted up
and set to work by the political magistrate, it
becomes a part of the vast system of machinery to
which we have given the name of the political sanc
tion. And now then we are in a condition to
discuss the nature of that genus of political
punishment which, in systems of jurisprudence,
is commonly spoken of under the name of infamy,
or forfeiture of reputation.
SEC. II. ADVANTAGES AND DISADVANTAGES OF
THE PUNISHMENTS BELONGING TO THE MORAL
SANCTION.
We will now proceed to examine the punish
ments belonging to the moral sanction itself,
independently of any employment of it by the
magistrate to aggravate or guide the effect of his
designs.
Punishments of this class, as has been already
said, admit of no distinctions ; they comprise all
sorts of evils : the ill-will produced manifests
itself in a variety of modes, that can neither be
calculated or foreseen. They admit then of no pre
cise description ; for it is only when the effects are
determinate that a punishment admits of a des
cription. Will they be analogous to the offence, or
unfrugal, or excessive ? upon these points nothing
can be said.
Our observations will be comprised under three
heads their divisibility, equability, and ex-
emplarity.
1 . These punishments admit of minute division :
they have all the degrees possible from mere
216 B.III. CH.II. OF PUNISHMENTS BELONGING
blame to infamy, from a temporary suspension of
good-will, to active and permanent ill-will : but
these several degrees depend altogether upon acci
dental circumstances, and are incapable of being
estimated by anticipation. Punishments of the
pecuniary or chronical class, as, for example, im
prisonment, are susceptible of being exactly
measured : punishments that depend on the
moral sanction, not. Before they are experienced,
the value put upon them is necessarily extremely
inaccurate. In respect of intensity they are liable
to be inferior to the greater part of tfyose belonging
to the political sanction ; they consist more in pri
vations of pleasure than in positive evils. This
it is that constitutes their principal imperfection ;
and it is solely for supplying this imperfection
that penal laws were established.
One of the circumstances by which their effect
is weakened, is the locality of their operation. Do
you find yourself exposed to the contempt of the
people with whom you are in the habit of asso
ciating ? to exempt yourself from it, all that you
have to do is to change your abode. The punish
ment is reduced to the giving a man the option
to remain exposed to the inconveniences resulting
from this contempt, or to inflict on himself the
punishment of banishment, which may not be
perpetual. He does not abandon the hope of
returning, when by lapse of time the memory of
his transgressions shall be effaced, and the public
resentment appeased.
2. In respect of equability these punishments are
really more defective than at first sight they might
appear. In every condition in life each man has his
own circle of friends and acquaintance. To become
an object of contempt or aversion to this society is
a misfortune as great to one man as to another ;
B.III. CH.II. TO THE MORAL SANCTION. 217
this is the result that may at first view present
itself to the mind, and which, to a certain extent,
is really correct ; it will, however, upon a more
narrow scrutiny of the matter, be found, that in
point of intensity this class of punishment is sub
ject to extreme variation, depending as it does upon
the condition in life, wealth, education, age, sex,
and other circumstances ; the casual evils result
ing from the punishments belonging to this sanction
are infinitely variable : shame depends upon sen
sibility.
Women, especially among civilized nations, are
more alive to, and susceptible of, the impression
of shame than men. From their earliest infancy,
and even before they are capable of understand
ing the object of it, one of the most important
branches of their education is, to instil into them
principles of modesty and reserve ; and they are
not long in discovering that this guardian of their
virtue is at the same time the source of their
power. They are, moreover, physically weaker,
and more dependent than men, and stand more in
need of protection ; it is more difficult for them to
change their society, and to remove from the
place of their abode.
At a very early age, generally speaking, sensi
bility to the moral sanction is not remarkably
acute : in old age it becomes still more obtuse.
Avarice, the only passion that is fortified by age,
subdues all sense of shame.
A weak state of health, morbid irritability, any
bodily defect, any natural or accidental infirmity,
are circumstances that aggravate the suffering from
shame as from every other calamity.
Wealth, considered of itself, independently of
rank and education, lias a tendency to blunt the
force of these impressions. A rich man has it in
218 B.1II. CH.II. OF PUNISHMENTS BELONGING
his power to change his residence, to procure
fresh connections and acquaintance, and by the
help of money to purchase pleasures for which
other people are dependent upon goodwill. There
exists a disposition to respect opulence on its own
account, to bestow on the possessor of it gra
tuitous services, and, above all, external profes
sions of politeness and respect.
Rank is a circumstance that augments the
sensibility to all impressions that affect the
honour : but the rules of honour and morality are
not always calculated upon the same scale : the
higher ranks are, however, in general more alive
to the influence of opinion than the inferior
classes.
Profession and habitual occupation materially
affect the punishments proceeding from this
source. In some classes of society, the point of
honour is at the very highest pitch, and any cir
cumstance by which it is affected produces a more
acute impression than any other species of shame.
Courage, among military men, is an indispensable
qualification : the slightest suspicion of cowardice
exposes them to perpetual insults : thence, upon
this point, that delicacy of feeling among men
who, upon other points, are in a remarkable degree
regardless of the influence of the moral sanction.
The middle ranks of society are the most virtu
ous, it is among them that in the greatest number
of points the principles of honour coincide with
the principles of utility : it is in this class also
that the inconveniences arising from the forfeiture
of esteem are most sensibly felt, and that the evil
consequences arising from the loss of reputation
produce the most serious ill consequences.
Among the poorer classes, among men who live
by their daily labour, sensibility to honour is in
B.III. CH.1I. TO THE MORAL SANCTION. 219
general less acute. A day labourer, if he is in
dustrious, though his character is not unspotted,
will be at no loss for work. His companions are
companions of labour, not of pleasure : from their
gratuitous services he has little to expect and as
little to ask. His wants are confined to the mere
necessaries of life. His wife and his children owe
him obedience, and dare not withhold it. The
pleasures which arise from the exercise of domes
tic authority fill up the short intervals of labour.
3. The greatest imperfection attending punish
ments arising from the moral sanction, is their
want of evemplarity . Their effect, in this respect,
is less than that of any of the punishments of the
political sanction. When a man is exposed to
suffering from loss of reputation, it may be un
known to all the world, or at least the knowledge
may be confined to those who are the instruments
of his punishment, and to the immediate circle of
his friends and acquaintance. But these are
witnesses only of a small part of his sufferings.
They perceive that he is treated with indifference
or disdain they observe that he does not find
protection or confidence ; but all these observa
tions are transitory. The individual, wounded by
these signs of coldness or aversion, shuns the
company of the authors or the witnesses of his
shame ; he retires to solitude, where he suffers in
secret, and the more unhappy he is, the smaller
is the number of the spectators of his punishment.
Punishments, connected with the moral sanc
tion, are advantageous with reference to reforma
tion. When a man suffers in consequence of a
violation of the established rules of morality, he
can only refer the evil he experiences to its true
cause ; the more sensible he is to shame, the more
he will fear to increase it : he will become either
220 B.III. CH.II. OF PUNISHMENTS BELONGING
more prudent that he may avoid detection, or
more careful to save appearances, or he will in
future submit to those laws which he has been
unable to break without suffering. Public opinion,
with the exception of a few cases, is not implaca
ble. There is among men a reciprocal need of
indulgence, and a levity and ease in forgetting
instead of forgiving faults, when the remembrance
of them is not renewed by fresh failures.
On the other hand, with respect to dishonour
able actions for which there is neither appeal or
pardon, the punishment of infamy acts as a dis
couragement, and not as a motive to reformation.
Nemo dignitate perditce pare it.
These disadvantages are in measure compensa
ted, and this sanction receives a degree of force
which is often wanting in the political sanction,
from the certainty of its action. There is no
offending against it with impunity an offence
against one of the laws of honour, arouses all its
guardians. The political tribunals are subjected
to a regular process, they cannot pronounce a
decision without proof, and proofs are often defec
tive. The tribunal of public opinion possesses
more liberty and more power ; it is liable to be
unjust in its decisions, but they are never delayed
on that account; they can be reversed at pleasure.
Trial and execution proceed with equal steps,
without delay or necessity for pursuit. There are
everywhere persons ready to judge and to execute
the judgment. This tribunal always inclines to
the side of severity ; its Judges are interested by
their vanity and their love of display in making
its decisions severe ; the more severe they appear,
the more they flatter themselves with the posses
sion of the good esteem of others. They seem to
think that the spoliation of one character forms
H.I1I. CII.II. TO THE MORAL SANCTION. 221
the riches of another. Thus, although the pu
nishments of the moral sanction are indetermi
nate, and, for the most part, when estimated
separately, of little weight, yet by the certainty
of their operation, their frequent recurrence, and
their accumulation, from the number of those who
have authority to inflict them, they possess a
degree of force which cannot be despised by any
individual, whatever may be his character, his
condition, or his power.
The power exercised by the moral sanction
varies according to the degree of civilization.
In civilized society there are many sources of
enjoyment, and consequently many wants, which
can be supplied only from considerations of reci
procal esteem ; he who loses his reputation is
consequently exposed to extended suffering in all
these points.
The exercise of this sanction is also favoured or
restrained by different circumstances. Under a
popular Government it is carried to the highest
degree, under a despotic Government it is reduced
almost to nothing.
Easy communications, and the ready circula
tion of intelligence, by means of newspapers,
augments the extent of this tribunal, and in
creases the submission of individuals to the empire
of opinion.
The more unanimous the decisions of the moral
sanction the greater their force. Are its decisions
different among a great number of different sects
or parties, whether religious or political, they will
contradict each other. Virtue and vice will not
use the same common measure. Places of refuge
will be found for those who have disgraced them
selves, and the deserter from one sect or party
will be enrolled in another.
222
CHAPTER III.
FORFEITURE OF REPUTATION.
WE now come to consider the Punishment of
Infamy or Forfeiture of Reputation.* The nature
of this punishment we have already had occasion
to discuss, in treating of the moral sanction from
* Though infamy is the more common, forfeiture of reputa
tion is the more convenient expression of the two. Infamy is a
term which appears forced, when applied to any other than very
high degrees of the punishment in question : the phrase forfei
ture of reputation is accommodated to one degree as well as
another ; for the quantity of reputation may be conceived to be
divided into as many lots or degrees as there can be reason
for.
The turn and structure of language having put a man s repu
tation, like his estate, upon the footing of his possessions, men
have considered and spoken of the subject as if it were a quan
tity alike determinate, and as if a man might be made to forfeit
the whole of his reputation at a single stroke, as he may the
whole of his estate. But that this, though possible in the latter
instance, is impossible in the former, will presently be seen by
tracing up these fictitious objects of possession to the real
objects from whence they are respectively derived. A man s
estate is derived out of things : out of certain determinate allot
ments of things moveable or immoveable ; or if any part of it be
derived immediately out of persons, it is derived out of the
services of a few persons, and those persons (and very frequently
those services due from each person) determinate and cer
tain. But a man s reputation is derived immediately out of
persons: out of the services of persons; out of any services of
any persons whatsoever: out of the services of as many persons,
be they who they may, as choose to render him any. This is a
stock which the political magistrate can never perhaps by any
one operation, nor indeed by any number of operations of any
kind, be certain of exhausting : much less by any such vague
and feeble operations as those are by which an offender is com-
B.III. C.III. FORFEITURE OF REPUTATION. 223
which it derives its origin. All that remains
for us to do in this place, is to state the various
contrivances by which the political magistrate has
gone about to modify its direction and to augment
its force.
In point of direction the way in which he influ
ences the action of this punishment is very simple;
it is this, by annexing it to the commission of any
act which, by prohibiting, he has constituted an
offence.
In point of force, he may influence it by various
means.
The methods by which this may be done may
be divided in the first place into legislative or exe
cutive. 1st. It may be done by methods simply
legislative, without any of that interference which,
in the case of ordinary punishments, is necessary
of the executive power : the law in this case com
mits to each individual, in as far as he himself is
concerned, the office of Judge and Executioner.
2nd. But in this case, as in any other, the law may
carry itself into execution in the ordinary methods
of procedure ; authorising the Judge either in
imitation of his predecessors, or in conformity to
the letter of positive law, to direct and animate
the resentment of the community at large.
monly understood to have been made to incur the forfeiture of
reputation, that is, the punishment of infamy.
If there be, it is that punishment which, if the vulgar tradi
tion is to be depended upon, was inflicted by Richard III on
Jane Shore: the direct prohibiting of all persons from rendering
to the offender any kind of service. But this is but in other
words the punishment of starving. The same punishment has
sometimes been denounced in other countries where, being
strictly executed, it has been, as it could not but be, attended
with that effect, f
t Case of the Albigenses. See Rapin (Montfort). See Watson s Phil. 2d.
224 B.IJI. C.TII. FORFEITURE OF REPUTATION.
By the simple exercise of the legislative office,
the law may annex to any mode of conduct a
certain quaiitity of disrepute in the following
ways:
J. By simply prohibiting any mode of conduct;
although no political penalty be also employed to
enforce the prohibition. This is the lowest degree
in which the political magistrate can be instru
mental in applying the force of the several sanc
tions. This slightest exertion of the force of the
moral sanction is inseparable, we see, from an
exertion of that of the political. A few words
may be of use on this occasion, to shew to what
causes it is owing that a certain share of the
former of these forces is become, as it were,
appurtenant to the other.
2. If no political penalty is denounced, the
community find in this circumstance a stronger or
additional reason for annexing their disesteem to
the breach of it. For since it must be evident to
the legislator, as it is to every man, that no rule
can have any effect without a motive to prompt a
man to observe it, his omitting to annex any other
penalty is naturally understood to be a kind of
tacit warning to the community at large to take
the execution of the law into their own hands.
All he does in such case is to give direction to the
moral sanction, trusting to its native force for the
execution of his law.
3. If the ordinance be accompanied by an ex
press exhortation to obey it, or, what comes to
much the same thing, if the terms in which it is
delivered savour of exhortation, this is another
and more express declaration of his persuasion of
the utility of the ordinance he promulgates. And
the more anxious he is that it should meet with
obedience, the more pernicious [it shews] he ap-
B.I1I. C.III. FORFEITURE OF REPUTATION. 225
pears to deem the conduct of any one who dis
obeys it, or at least the more convinced he shews
himself to be, that to a certain degree at least the
non-observance of it would be pernicious to the
community.*
5. A fifth expedient, by which the moral sanc
tion is called upon in a manner still more express
to enforce political ordinance, is by censure di
rectly levelled at him, whosoever he shall prove
to be, that shall infringe it. This censure may be
levelled at the offender either immediately, or else
mediately, by being immediately pointed at the
offence. |
6. A sixth expedient is by transferring, or at
least endeavouring to transfer, upon one offence,
the measure of disrepute that naturally attends
upon another. The way in which this is done, is
by affecting to regard the obnoxious practice in
question as an evidence of another practice of
which men are already in the habit of bestowing
a superior degree of disrepute. J It is plain that
* This anxiety may be grounded or excited not solely by a
supposed utility of the law, but in some degree by a supposed
propensity in the people to disobey it.
f Of terms of condemnation applied directly to the offence,
the improbi? factum of the Lex Valeria may serve for an example.
" Valeria Lex, quum eum qui provocasset virgis caedi securique
necari voluisset, siquis adversus ea fecisset, nihil ultra quam
improbt 1 factum adjecit." Livv, 1. 10, ch. 9.
The laws of Greece and Rome afford several examples, where
for different offences, the offender is pronounced infamous.^
I Of this we have an example in certain laws of Zaleucus
the Locrian Legislator, pretended to have been preserved (say
my authority) by Diodorus Siculus. " Let not a free woman
go forth from the city in the night, unless when she goes to pros-
ttute herself to her gallant. Let her not wear rich ornaments or
So by 9 Ann. c. 14, 5, a loss at play, if prosecuted on that statute, is to be
declared infamous. Vide etiam stat. Ed. 6.
B.III. C.III. FORFEITURE OF REPUTAT1OI^ T .
the cases in which this can be attempted with any
prospect of success must necessarily be limited.
To warrant the inference, some appearance in
connection, however superficial, there must be
between the two offences. But any little con
nexion, however slight, is ordinarily sufficient. In
such a case, men in general are not apt to be very
difficult with regard to the evidence. The vanity
of being thought sagacious, the pride of sitting in
judgment and condemning, the hope of earning a
certain measure of reputation on the score of
virtue at an easy rate. The love of novelty and
paradox, and the propensity to exaggeration,
especially on the unfavourable side, second the
aim of the legislator.
So much for the ways in which the political
magistrate may exert an influence over the moral
sanction by the bare exercise of his legislative
powers : we now come to the instances, in which
he requires the assistance of the Executive.
Of all the expedients that may be classed under
this head, the least severe is that of publication,
the making public the fact of the offence, accom
panied with a designation of the offender. It is
principally in point of extent that a measure of this
sort tends to add to the natural quantum of disre
pute : though something likewise may be sup
posed to be contributed by it in point of intensity,
on account of the certainty which it gives to men s
garments interwoven with gold, unless she be a courtezan."
Princ. of Pen. Law, c. 26.
This was as much as to say, that if he knew of a woman s
going abroad in a lone place at the unseasonable hour he is
speaking of, the legislator should take it for granted that such
was the errand she went out upon. If she dressed in a manner
in which it was particularly the business of courtezans to dress,
he should take for granted her being of that stamp.
ll.IH.C.Iir. FORFEITURE OF REPUTATION. 227
opinions of the delinquency of the offender. Even
this mode of proceeding, mild as it may appear,
is capable of various degrees of severity, accord
ing to the various degrees of publicity that may
be given to the fact. It may be registered in a
written instrument to which few people have
access ; it may be registered in a written instru
ment to which any person may have access. It
may be notified by proclamation, by sound of
trumpet, by beat of drum. Since the invention
of printing, it may be recorded in indelible cha
racters, and circulated through the whole state.*
It is obvious that the discredit reflected by this
expedient must be greater or less in point of in
tensity as the offence is esteemed more or less
disreputable.
The censure which in the law is pronounced
in general terms upon such uncertain persons as
may chance to become offenders, may, upon con
viction, by the assistance of the executive power,
be brought home to, and personally levelled at any
individual offender. And this may be done in a
manner more or less public, and either in a settled
form of words, or with more latitude in a speech
ad libitum, to be delivered by the Judge. f
But the severest expedient for inflicting infamy
is that which consists in the applying of some
political punishment, which, by its influence on
* Iu certain offences against the Police, for instance, in
selling bread by short weight, it is not an uncommon thing,,
where the decree of delinquency appears to be considerable, for
the magistrate to threaten the offender, that upon the next con
viction he shall be advertised in the newspapers. Such a pu
nishment seems to be looked upon as more severe than the fine
imposed by statute.
t When the punishment is capital, or the sentence discre
tionary, it is common with us in England to preface it with
such a speech.
228 B. III. C. III. FORFEITURE OF REPUTATION.
the imaginations of mankind, is in possession of
the power of producing this effect. This leads us
to enquire into the different measures of infamy
that stand naturally annexed to the several modes
of punishment ; and in the course of this enquiry
we shall find reason to distinguish certain punish
ments from the rest by the special epithet of infa
mous.
A certain degree of infamy or disrepute, we
have already remarked, is what necessarily attends
on every kind of political punishment. But there
are some that reflect a much larger portion of
infamy than others.* These, therefore, it is plain,
are the only ones which can be stated properly by
that name.
Upon looking over the list of punishments we
shall find that it is to those which come under the
name of corporal punishments that this property
of reflecting an extraordinary degree of infamy is
almost exclusively confined. Pecuniary punish
ments, which are the most common, are attended
with a less degree of infamy than any other ; un
less it be quasi-pecuniary punishments ; which in
this respect, as in most others, are pretty much
upon a par with pecuniary. Next to these come
the several modes of confinement ; among which,
if there be any difference, quasi imprisonment and
local interdiction seem the mildest in this respect,
next to them banishment, and imprisonment the
severest. Of specific restraints and active punish
ments at large, they are so various, that it is not
* Aware of this circumstance, the Roman lawyers have taken
a distinction between the infamia facti and the infamia juris :
the natural infamy resulting from the offence, and the artificial
infamy produced through the means of the punishment by the
law. See Keinecc. Elementa Jur. Civil. Pand. 1.3. tit. 2. "399,
whose explanation however is not very precise.
B. III. C. III. FORFEITURE OF REPUTATION.
easy to give an account. In general they seem to
be on a footing with those punishments that are
mildest in this respect, unless where, by means of
analogy, they are so contrived as to reflect and
aggravate in a peculiar manner the infamy of the
offence.* The same account may be given of all
the other kinds of forfeiture.
With regard to corporal punishments short of
death, there is no punishment of this class but is
understood to carry with it a very high degree of
infamy. The degree of it, however, is not by any
means in proportion to the organical pain or incon
veniences that are respectively attendant upon
those punishments. On the contrary, if there be
any difference, it seems as if the less the quantity
is which a punishment imparts, of those or any
other kind of inconveniences, the greater is the
quantity which it imports of infamy. The reason
may be, that since it is manifest the punishment
must have been designed to produce suffering in
some way or other, the less it seems calculated to
produce in any other way, the more manifest it is
that it was for this purpose it was made choice of.
Accordingly, in regard to punishments to which
the highest degrees of infamy are understood to be
annexed, one can scarcely find any other suffering
which they produce. This is the case with seve
ral species of transient disablement ; such as the
punishments of the stocks, the pillory, and the
carcan : and with several species of transient as
well as of perpetual disfigurement; such as igno
minious dresses and stigmatization. Accordingly,
* Such as the obligation to ask pardon, an instance of active
punishment : the forbearing to carry on an employment which
the offender has exercised fraudulently, an instance of restric
tive punishment : the forbearing to come into the presence of
the party injured, an instance of ambulatory confinement.
230 B. III. C. III. FORFEITURE OF REPUTATION.
these modes of punishment are all of them regarded
as neither more nor less than so many ways of
inflicting infamy. Infamy thus produced by cor
poral punishments, may be stiled corporal ignominy
or infamy.
According as the corporal punishment that is
made choice of for the sake of producing the
infamy is temporary or perpetual, the infamy
itself may be distinguished into temporary and
indelible. Thus the infamy produced by the
stocks, the pillory, and the carcan, is but tempo
rary; that which is produced by an indelible
stigma is perpetual. Not but that any kind of
infamy, howsoever inflicted or contracted, may
chance to prove perpetual ; since the idea of the
offence, or what comes to the same thing, of the
punishment, may very well chance to remain
more or less fresh in men s minds to the end of
the delinquent s life : but when it is produced by
an indelible stigma, it cannot do otherwise than
continue so long as the mark remains, whatsoever
happens to him. Wheresoever he goes, and how
long: soever he lives, he bears about him the evi-
O
dence of his guilt.
Mutilation and the severer kinds of simple
afflictive punishments, discolourment, disfigure
ment and disablement, are all attended likewise
with a very intense degree of infamy ; that is in
as far as the effects produced by them are known
to be produced on purpose in the way of punish
ment. But with regard to many of the sorts of
~ j
punishment that come under the three latter
heads, as the effects of them are, upon the face of
them, no other than might have been produced by
accident, they are therefore the less certain of pro
ducing the effect of infamy. The infamy produced
by these punishments is, in point of duration, of a
B.III. C.III. FORFEITURE OF REPUTATION. 231
mixed nature, as it were, between temporary and
perpetual. At the time of the execution it stands
upon a par in this respect with the pillory or the
stocks, with whipping, or any other kind of simple
afflictive punishments : after that time it is greater
than what is produced by any of these punish
ments, because the visible consequences still con
tinue : it is not however so great as what is pro
duced by stigmatization, because it does not of
itself, like that galling punishment, make known
the guilt of the delinquent to strangers at the first
glance.
Nearly allied to corporal infamy are two other
species of infamy, which as they derive their influ
ence altogether from that which is possessed by
corporal infamy, may be stiled quasi-corporal.
The one is inflicted by an application made,
instead of to a man s body, to some object, the
idea of which, by the principle of association, has
the effect of suggesting to the imagination, the
idea of a punishment applied actually to the body
itself. This, inasmuch as it operates by the
force of symbols or emblems, may be styled sym
bolical or emblematical corporal infamy.* The
other is inflicted by a punishment applied indeed
to the body, but not till after it has ceased to be
* Among the ancient Persians, in some cases, when the cri
minal was of high rank, instead of whipping the man himself, it
was the custom to whip his clothes. To this head may also be
referred the custom which prevails in France and other nations
upon the continent of executing criminals in effigy. The
feigned punishments inflicted on the effigy is commonly, I sup
pose, the same that would have been really inflicted upon the
man s person for the same offence; nor is it usual, I believe, to
employ this punishment where the delinquent is forthcoming.
In Portugal, several of the persons who were concerned in
the attempt upon the late king s life were punished in this
manner.
232 B.III. C.1II. FORFEITURE OF REPUTATION.
susceptible of punishment, I mean not till after
death ; this may be styled posthumous or post-
obitory corporal infamy.*
To the head of forfeiture of reputation must be
referred a forfeiture of a very particular kind, for
feiture of credibility ; that is, in effect, forfeiture of
so much of a man s reputation as depends upon
the opinion of his veracity. The effect of this
punishment (as far as it can be carried into effect)
is to cause people to bestow on the delinquent that
share of ill-will which they are naturally disposed
to bear to a man whose word they look upon as
not being to be depended upon for true.
This punishment is a remarkable instance of the
empire attempted, and not unsuccessfully, to be
exercised by the political magistrate over the moral
sanction. Application is made to the executors of
that sanction, that is the public at large, to bestow
on the delinquent not so much of their dis-esteem
in general, nor yet so much of their dis-esteem as
they are disposed to annex to some particular of
fence of which he has been found guilty, but such a
share as they are disposed to annex to another
offence of which he has not been proved guilty,
and which, unless by accident, has no connection
with that of which he has actually been proved
guilty.
* To this bead may be referred a part of the punishment in
use in England for High Treason, according to the Common
Law ; the taking out and burning of the entrails, the cutting off
the head, and the dividing the body into four quarters, which
are disposed of at the King s pleasure. 2 Hawkins, 443.
By an English statute, in cases of murder, the Judge is en
joined to order the body (after the criminal has been put to
death by hanging) to be publicly dissected, and is empowered to
order it to be hung in chains, as the phrase is : which is prac
tised by suspending it from a gibbet in an iron frame.
B.III. C.III. FORFEITURE OF REPUTATION. 233
The method too which is taken to inflict this
punishment is equally remarkable. It is inflicted
not by any restraint or other punishment applied
to the delinquent, but by a restraint laid upon ano
ther person, a Judge, or by an inconvenience which
may be of any kind whatsoever, thrown (as the
case may require) upon any person whatsoever.
The Judge is forbidden to interrogate him, or to
permit him to be interrogated as a witness in any
cause, as also to pay any regard on any such
occasion, to any instrument purporting to contain
his written attestation. The party who may have
stood in need of his evidence for the preservation
of his life, liberty, or fortune, or the public who
may have stood in need of it to warrant the
punishment, and guard itself against the enter
prises of another, perhaps more atrocious, crimi
nal, are precluded from that benefit.
I know not of any instance in which it is
absolutely clear that a man has been made to
incur this singular kind of forfeiture in the express
view of punishment. In all the cases in which
it has been adopted, it is not impossible but that
the restraint which it imports may have been
imposed in no other view than that of improving
the rules of evidence, and guiding the Judge
against error in his decision upon the questions of
fact brought before him.
Be this as it may, it is certain that in the En
glish law it stands annexed in many instances to
offences which have not the remotest con
nection with the veracity or mendacity of the
offender.*
* For instance, to High Treason, or the adherence to the unsuc
cessful side in a competition for the Crown ; to Homicide com-
234 B.III. C.III. FORFEITURE OF REPUTATION.
To this head also must be referred the punish
ment of forfeiture of rank, otherwise entitled
degradation. For the purpose of understanding
this modification of ignominious punishment, repu
tation must be distinguished into natural or ordi
nary, and factitious or extraordinary. By natural
share of reputation and goodwill, I mean that
which each man possesses in virtue of his own per
sonal conduct and behaviour. By factitious, I mean
that extraordinary share of these possessions which,
independently of a man s personal conduct, is be
stowed on him by the institution and contrivance
of the political magistrate.
This kind of factitious reputation is commonly
annexed to office or employment : but it some
times exists by itself. This is the case, for in
stance, in England, with the ranks of gentleman,
esquire, knight, and baronet, and the ranks derived
from academical degrees.
Rank may be conferred either by custom or by
authority. When derived from custom, it is an
nexed either to family or to occupation. When
derived from authority, it is annexed to the per
son. But whether it were conferred by authority
or no, it is in the power of authority to diminish
the reputation belonging to it, if not wholly to
take it away. A sentence of a Judge degrading a
man from the rank of gentleman, cannot cause a
man not to have been born of a father that was a
mitted in revenge, on a sudden quarrel, or in the course of a
duel, by consent : to Rape and other irregularities of the vene
real appetite. This, however, seems to proceed not so much from
design as from inattention in the authors of our Common Law ;
and is one of the many absurd and mischievous consequences
that follow from the lumping together offences of the most
heterogeneous natures under the name of Felonies.
B.III.C.llI. FORFEITURE OF REPUTATION. 235
gentleman, but it may divest him of a greater or
less share of that respect which men were disposed
before to pay him on that account.
As to the mode of inflicting degradation, it may
be inflicted by any process that serves to express
the will of the magistrate, that the delinquent be
no longer considered as possessing the rank in
question, with or without corporal ignomy.
Degradation, did it answer precisely to the defi
nition given of it, when it is stiled forfeiture of
rank, should take away from a man that precise
quantity of reputation, and consequently of good
offices, and consequently of happiness, for which
he stands indebted to his rank. But as these
quantities are incapable pf being measured, or
even estimated with any tolerable degree of exact
ness, the punishment of degradation can never
with any certainty be made to answer precisely to
such definition. It seems probable that a man
who has once been possessed of a certain rank,
can never be totally deprived of all the reputation,
respect, and good offices that are commonly ren
dered to that rank : the imaginations of mankind
are too stubborn to yield instant and perfect obe
dience to the nod of power. It seems probable,
notwithstanding that the condition of a man who
has undergone a degradation of rank is thereby
commonly rendered worse upon the whole than if
he had never been possessed of it ; because in
general simply not to possess, is not so bad as
having possessed to lose. To speak with more
precision, it should seem that the characteristic
pain of the moral sanction produced by such a
punishment, is in general more than equivalent to
the sum of such of the casual benefits of that sanc
tion as the punishment fails to take away.
236 B.III. C.III. FORFEITURE OF REPUTATION.
It is common enough to speak of a total loss of
reputation ; and some Jurists speak of such a loss
as if it could easily be, and were frequently in
curred. But such a notion is not compatible with
any precise idea of the import of that term. To
understand this, it will be necessary to conceive in
idea a certain average or mean quantity of repu
tation equal to Zero, from whence degrees of good
reputation may be reckoned on one side, and of
bad reputation on the other. This mean quantity
of reputation, or goodwill call that which any
given member of the community may be deemed
to possess, who has no rank, and who either has
neither merits nor demerits, if such a human being
be conceivable, or rather whose merits stand ex
actly upon a level with his demerits. All above
this average quantity may be stiled good reputa
tion, all below it bad reputation. In one sense
then, a total forfeiture of reputation should consist
of nothing more than a total forfeiture of good
reputation, as thus defined. Now then, according
to this account of the matter, a total forfeiture of
reputation would be nothing more than what is
very possible, and indeed must be very frequent.
But it is plain that this is not what the Jurists,
nor indeed what persons in general, in speaking of
a total forfeiture of reputation, have in view. For
all that this would amount to, would be the redu
cing the delinquent to a level with a man of ordi
nary merit and condition : it would not put his
reputation upon so low a footing as that to which
a man of ordinary merit and reputation would be
reduced by the slightest instance of moral or poli
tical delinquency. What they have in view is
the acquisition, if one may so term it, of a certain
share of ill reputation, the quantity of which they
B. III. C. III. FORFEITURE OF REPUTATION. 237
view iii a confused manner, as if it were determi
nate, and consisted of all the ill reputation a man
could possibly acquire. But this, it is plain, it
never can do, at least in the cases to which they
apply it. For they speak of such an event as if it
could be and commonly were the effect of a single
instance of delinquency ; for instance, a robbery or
ordinary murder. This, it is plain, it can never be,
unless it should be maintained that an act of parri
cide, for example, would not make a man worse
looked upon than he was before, after having com
mitted only a robbery or ordinary murder. It is
plain that the maximum of bad as well as that of
good reputation is an infinite quantity, and that in
this sense there is no such thing within the sphere
of real life as a total forfeiture of reputation.
SECT. II. SIMPLE IGNOMINIOUS PUNISHMENTS
EXAMINED.
The infliction of ignominious punishment is an
appeal to the tribunal of the public an invitation
to the people to treat the offender with contempt,
to withdraw from him their esteem. It is (to
speak in figurative language) a bill drawn upon
the people for so much of their ill-will as they
shall think proper to bestow. If they look upon
him in a less favourable light than they would
otherwise, the draft is honoured : if they do not,
it is protested, and the charge is very apt to fall
upon the drawer. Ignominious punishments are
like those engines which are apt to recoil, and
often wound the hand that unadroitly uses them.
But if skilfully managed, what important ser
vices may they not be made to render ! The
legislator, by calling in to his aid, and trusting to
238 B.III. c.ui. FORFEITURE OF REPUTATION .
the moral sanction, increases its power and the
extent of its influence : and when he declares that
the Ions of honour is to be considered as a severe
punishment, he gives to it in the eyes of every man
an additional value.*
1 . This species of punishment, so far as it goes,
is not without some commodious properties : it is
variable in quantity from the paternal admonition
of the Judge, to a high degree of infamy. Accom
panied with more or less publicity, with various
circumstances of disgrace and humiliation, the
legislator may proportion the punishment to the
malignity of the offence, and adapt it to the various
circumstances of age, rank, sex, and profession.
Every station in life will, for this purpose, afford
facilities that are peculiar to it, and in particular
the military.
In point of variability, punishments of this kind
have an advantage over every other mode of pu
nishment. This quality is desirable in a mode of
punishment that it may be capable of being made
to bear a due proportion to every offence to which it
is annexed. With regard to all other kinds of
punishments that are constituted solely by the law,
the proportion must be settled by the law ;
whereas this mode has a tendency to fall into that
proportion of itself. The magistrate pronounces
the people execute. The people, that is, as many
of the people as think proper : they execute it,
that is, in whatever proportion they think proper.
The malignity towards the delinquent is in general
proportionate to the malignancy of his offence. It
is not, however, like corporal punishment, capable
* See Traites de Legislation, torn. iii. c. 17. Emploi du
Mobile de 1 Honneur.
B. III. C. III. FORFEITURE OF REPUTATION. 239
of being universally applied to all offences. In
many cases an offence may be productive of real
mischief, but a mischief which the people, the
executioners of this mode of punishment, are not
qualified to perceive. On this part of the subject
we shall have occasion to speak further presently.
2. In point of exemplarity , this mode of punish
ment cannot be excelled. Whatever it is that a
man surfers by the publication of his offence, whe
ther by degradation or by being subject to ignomi
nious exposure ; it is evident that he suffers it from
the infamy attached to his character under the sanc
tion of the legislator.
3. In point of frugality it is advantageous
enough. The mischief apprehended from the
ill-will annexed to a disreputable act, bears, I sup
pose, at least as high a ratio to the eventual mis
chief, as the mischief apprehended from any other
mode of punishment does to the eventual.
4. In point of popularity it cannot be excelled.
For what objection can the people have to a
man s being punished in this manner, when all that
is done to him is the giving them notice that within
the bounds which the law allows, they themselves
may punish him as they please, when they them
selves are both Judges and executioners?
5. They are remissible. An erroneous sentence
may be annulled. A greater degree of notoriety
maybe given to the justification than accompanied
the condemnation. The stain that had been thus
affixed on his character will not only be completely
effaced, but the supposed offender, from the unjust
persecution that he will have undergone, will
become a general object of sympathy, and espe
cially to those who have been instrumental in
inflicting the punishment.
What is more, even though justly inflicted, the
240 B.III. C.III. FORFEITURE OF REPUTATION.
patient, by the stimulus he will have received,
may be excited to exertions to recover the esteem
he has lost, and to earn fresh honours to hide his
disgrace. In the army it has happened that whole
bodies of troops, after having been stigmatized by
their officers, have atoned for their offence by dis
tinguished acts of valour, and have received the
highest marks of honour.
This advantage is not possessed by ignominious
corporal punishments : the stain that they leave is
indelible ; and unless the patient expatriates him
self, his lost reputation is irrecoverable.
Having thus stated the properties that belong
to punishments of this kind, we proceed to notice
a difficulty which arises in their application, and
which is peculiar to them. The legislator cannot
at pleasure attach to any given species of offence
the degree of infamy that he may be desirous of
affixing to it. There are some classes of offences
really detrimental to the country, such, for exam
ple, as election bribery and smuggling, for the
punishing of which the legislator has no means of
pressing the great bulk of the people into the ser
vice. Upon other points the popular sentiments
are in direct opposition to those of the legislature :
there are others in which they are wavering,
neutral, or too feeble to serve his purpose. The
case of duelling may serve as an example.
" So far" (says Rousseau) " is the censorial tri-
" bunal from leading the public opinion, it follows
" it : and when it departs from it, its decisions are
" vain and nugatory. "*
Be it so ; but what follows from this ? Is it
that the legislator is to be the slave of the most
mischievous and erroneous popular notions ? No.
* Contrat Social. Liv. iv. c. 7.
B.1II. C.IIJ. FORFEITURE OF REPUTATION. 241
This would be to quit the helm while the vessel
was surrounded with rocks. His greatest difficulty
will consist in conciliating the public opinion, in
correcting it when erroneous, and in giving it that
bent which shall be most favourable to produce
obedience to his mandates.
The legislator is in an eminent degree possessed
of the means of guiding public opinion. The
power with which he is invested gives to his
instructions, whenever he may bestow them, far
greater weight than would be attributed to them
if falling from a private individual. The public,
generally speaking, presumes that the government
has as its command more completely than any pri
vate man, the requisite sources of information. It
is presumed also that in the great majority of cases
its interest is the same with that of the people,
and that it is unbiassed by personal interest, which
is so apt to misguide the opinion of individuals. If
things go on unprosperously, the responsible agents
become subject to the animadversion of the public :
if prosperously, they have the credit and the
advantage. Of this people in general have a
confused notion, and it is the ground of their
confidence.
In extirpating prejudices that appear to him to
be mischievous the legislator has the means of
laying the axe to the root of the evil. lie may
form institutions which, without inculcating doc
trines in direct repugnance to received opinions,
may indirectly attack them. Instead of planting
against them a battery he may sink a mine beneath
them, the effect of which will be infallible.
The legislator is clothed not only with political
but with moral power. It is what is commonly
expressed by the words consideration, respect,
R
242 B.III. C.III. FORFEITURE OF REPUTATION.
confidence. There are not wanting instances in
which, by means of such instruments, the most
important effects have been produced.
A certain degree of infamy, it is obvious, must
naturally result upon a conviction for any offence
which the community are accustomed to mark
with their displeasure : thus much results from
the bare conviction, indeed from the bare detection,
without any express designation of the magistrate.
The only way, therefore, in which the magistrate
can produce any additional degree of infamy, I
mean all along pure and simple infamy, is by
taking extraordinary measures to make public the
fact of the offence. In this way it is only in
point of extent that the magistrate adds to the
actual portion of infamy that flows from the offence.
In point of intensity, there is but one way in
which the law can contribute anything to the
infliction of simple infamy. This is by bestowing
on the act in question some opprobrious appella
tion : some epithet, calculated to express ill-will
or contempt on the part of him who uses it.
Thus, a legislator of ancient Rome, (in a passage
of Livy, quoted by the Author of Principles of
Penal Law,*) after describing a particular mode
of offence, is said to have done nothing more
towards punishing it, than by subjoining these
words, improbb factum. Here the legislator be
gins the song of obloquy, expecting that the
people will follow in chorus. The delinquent is
to be pelted with invectives, and the legislator
begins and casts the first stone.
But when the object of the legislator is to
conciliate the public opinion, and especially when
* P. 290, 1st edit.
B. III. C. III. FORFEITURE OF REPUTATION. 243
that opinion is opposite to the one he would esta
blish, he must address himself to their reason.
I hope it will not be supposed that under the
name of reasons, I have here in view those effu
sions of legislative babbling, those old-womanish
aphorisms, mocking the discernment of the people,
degrading the dignity of the legislature, which
stuff up and disgrace the preambles of our statute-
books. " Whereas it has been found inconve
nient Whereas great mischiefs have arisen" as if
it were endurable that a legislator should pro
hibit a practice which he did not think " inconve
nient," which he did not think " mischievous,"
and as if, without his saying as much, the people
would not give him credit for wishing that it might
be believed he thought it.
Of what sort then should the reasons be which
the legislator ought to employ to back and justify
an epithet of reproach ? They should be such as
may serve to indicate the particular way in which
the practice in question is thought liable to do
mischief; and by that means, point out the ana
logy there is between that practice, and those
other practices, more obviously but perhaps not
more intensely mischievous, to which the people
are already disposed to annex their disapproba
tion. Such reasons, if reasons are to be given,
should be simple and significant, that they may
instruct, energetic that they may strike, short that
they may be remembered.
Take the following as an example in the case of
smuggling. Whosoever deals with smugglers let
him be infamous. He who buys uncustomed goods
defrauds the public of the value of the duty. By
him the public purse suffers as much as if he had
stokn the same sum out of the public treasury. He
244 B.III. C.III. FORFEITURE OF REPUTATION.
who defrauds the public purse defrauds every member
of the community.*
As the legislator may lay the hand of reproach
upon him who counteracts the purposes of the
law, so may he take it off from him who forwards
them. Such is the informer : a sort of man on
whose name the short-sightedness and prejudice
of the people, inflamed by the laws themselves,
have most undeservedly cast an odium. The in
former s law might be prefaced in the following
manner :
It is the artifice of bad men to seek to draw con
tempt upon them who, by executing the laws, would
be a check upon their misdeeds. If the law is just,
as it ought to be, the informer is the enemy of no
man, but in proportion as that man is an enemy to the
rest. In proportion as a man loves his country he
will be active in bringing to justice all those who, by
the breach of the laws, entrench on its prosperity .
It will be remarked, that in this new part of the
law in this struggle to be made against the errors
of the moral sanction there is work for the dra
matist as well as the legislator, or else, that the
politician should add somewhat of the spirit of
* I say the public purse, I do not say the public simply.
Far from the pen of the legislator be that stale sophistry of
declaiming moralizers, which consists in giving to one species of
misbehaviour the name and reproach of another species of a
higher class, confounding in men s minds the characters of vice
and virtue. Pure from all taint of falsehood should the legis
lator keep his pen; nor think to promote the cause of utility
and truth by means which only tyranny and imposture can
stand in need of. In what I have said above there is nothing
bul what is rigorously and simply true. But it were not true
to say that a theft upon the public were as mischievous as a
theft upon an individual ; from this there results no alarm, and
the more the loss is divided the lighter it falls upon each.
B. III. C. III. FORFEITURE OF REPUTATION. 245
the dramatist to all the information of the lawyer.
Thus wrote the legislators of ancient days, men
who spoke the significant and enchanting language
of ancient Greece. Poetry was invited to the aid
of law. No man had ever yet thought of ad
dressing the people in the barbarous language that
disgraces our statute-book, where the will of the
legislator is drowned in a sea of words. Habited
in a Gothic accoutrement of antiquated phrases,
useless repetitions, incomplete specifications, en
tangled and never-ending sentences, he may
merely, from incomprehensibility, inspire terror,
but cannot command respect. It may be matter
of astonishment, why the arbiters of our life and
of our property, instead of disporting themselves
in this grotesque and abject garb, cannot express
themselves with clearness, with dignity, and with
precision : the best laws would be disfigured if
clothed in such language.
" In a moderate and virtuous government,"
says an elegant and admired writer, " the idea of
shame will follow the finger of law."
Yes, so as his finger be not so employed as to
counteract and irritate the determined affections
of the people. He goes on and says, " whatever
species of punishment is pointed out as infamous,
will have the effect of infamy." True, whatever
is appointed by the legislator as a mark to sig
nify his having annexed his disapprobation to any
particular mode of conduct, will have this effect;
it will make the people sensible that he wishes to
be thought to disapprove of that mode of conduct;
in most cases, that he does really disapprove of it.
But to say that whatever the legislator professes
to disapprove of, the people will disapprove of
too, is, I doubt, going a degree too far.
We may direct his attention to an instance of
246 B. III. C. III. FORFEITURE OF REPUTATION.
an offence which, under as moderate and virtuous
a government, I dare believe, (all prejudices
apart) as ever yet existed, laws have rendered
penal, magistrates have endeavoured to render
infamous, by a punishment which in general
marks the patient with infamy, but which no
laws, no magistrates, no punishments, will in this
country ever render infamous. I mean state-
libelling.
The offence of libelling, as marked out by the
law as it stands at present, is this ; it is the pub
lishing respecting any man anything that he does
not like. This being the offence of libelling in
general, the offence of state-libelling is the pub
lishing respecting a man in power anything which
he does not like.
A libel is either criminative or vituperative. By
criminative, I mean such an one as charges a man
with having done a specific act (determinable by
time and place,) of the number of those that are
made punishable by law. By vituperative, simply
vituperative, I mean such an one as, without
charging a man with any specific fact, does no
more than intimate, in terms more or less forcible,
the disapprobation in which the libeller holds the
general conduct or character of the party libelled.
Such are all those epithets of vague reproach,
liar, fool, knave, wicked profligate, abandoned
man, and so forth : together with all those com
positions which in the compass of a line or of a
volume intimate the same thing. A criminative
libel therefore is one thing : a vituperative is
another. The law knows not of these terms : but
it acknowledges the distinction they are here
intended to express.
Of these two, a libel of the criminative kind
admits, we may observe, of another much more
B. III. C. III. FORFEITURE OF REPUTATION. 247
confined and determinate definition : a vitupera
tive libel will admit of no other than that which
is given above.
Now then so it is, that for a libel simply
vituperative, against a private person, the law will
not let a man be punished by what is called an
action to the profit of the party, unless it be under
particular circumstances, which it is not here the
place to dwell upon. But by imprisonment, or to
the profit of the Crown, by what is called an
indictment, or more especially what is called an
information, it will let him be punished at the
caprice, (for no rules are or can be laid down to
guide discretion) at the caprice, I say, and fancy
of the Judges. For a libel of the criminative kind,
against a private person, the law will not let a
man be punished, if the libeller can prove his
charge to be a true one. But for a libel against a
man in power, criminative or vituperative, true or
false, moderate or immoderate, it makes a man
punishable at all events, without distinction. If
it be true, it is so much the worse ; Judges, think
ing to confound reasoning by paradox, have not
scrupled to hazard this atrocious absurdity. The
Judges of antiquity broached it long ago ; suc
ceeding Judges have adhered to it ; present Judges,
whose discernment cannot but have detected it,
present Judges, as if borne down by the irresis
tible weight of authorities, recognize it ; and it
triumphs to this hour.
This being the case, he who blames the pro
ceedings of a man in power, justly or unjustly, is
a libeller : the more justly, the worse libeller.
But for blaming the proceedings of men in power,
and as they think j ustly, never will the people of
this country look upon a man as infamous.
Lawyers may harangue, juries may convict; but
248 B.III. C.III. FORFEITURE OF REPUTATION.
neither those juries, nor even those lawyers will,
in their hearts, look upon him as infamous.*
The practical conclusion resulting from this is,
that the legislator ought never directly to oppose
the public opinion by his measures, by endeavour
ing to fix a stain of ignominy upon an act of the
description of those in question, which are equally
liable to originate in the most virtuous as in the
most vicious motives, and which consequently
escape general reprobation.
But it is not less true, that in a very extensive
class of cases, an argument addressed to the un
derstandings and sentiments of the people, would,
if properly applied, have some considerable effect,
as well as on arguments addressed to their fears.
If he thought the experiment worth trying, the
legislator might do something by the opinion of his
probity and his wisdom, and not be forced to do
everything by the terror of his power. As he
creates the political sanction so he might lead the
moral. The people even ih this country are by
no means ill-disposed to imagine great knowledge
where they behold great power. A few kind
words, such as the heart of a good legislator will
furnish without effort, will, if the substance of the
law be not at variance with them, be enough to dis-
* In 1758, Dr Shebbearc, was pilloriedf for writing a libel
against the then King under a Whig administration. He stood
in triumph. The people entertained him with applause. At
another time, J. Williams, bookseller, was pilloried for publish
ing a libel against his Majesty George the Third, under an ad
ministration charged with Toryism : the people made a collection
for him. At another time, W. Beckford, Lord Mayor of London,
replied extempore, in an unprecedented and affrontive manner,
to a speech from the throne : the citizens put up his statue in
Guildhall. Shame did not then, I think, follow the finger of
the Jaw.
t 2 Bur. 792.
B. III. C. III. FORFEITURE OF REPUTATION. 249
pose the people to be not uncharitable in their
opinion of his benevolence.
Not that the legislator in our days, and in those
countries which, on the subject of government,
one has principally in view, ought to expect to
possess altogether the same influence over the
moral sanction as was exercised by the legislators
of such small states as those of Greece and Italy
in the first dawnings of society. The most pro
minent reason of this difference is, that in monar
chical governments it is birth, and not any personal
qualifications, that fix a man in this office. It is
rare that the person in whose name laws are issued
is the person who is believed to make them. It is
one thing to make laws, and another to touch them
with a sceptre.
The Catherines and Gustavuses govern, and are
seen to do so. Other Princes are either openly
governed, or locking up their bosoms from the
people reign as it were by stealth.
In a mixed government like our s, where the
sovereign is a body, he has no personal character.
He show r s himself to the people only in his com
positions, which are all that is known of him.
By those writings he may doubtless give some
idea of his character. But as his person is in a
manner fictitious and invisible, it is not to be ex
pected that the idea of his character should make so
strong an impression upon the imagination of the
people, as if they had the idea of this or that
person to connect it with.
In the small states of Greece the business of
legislation stood upon a very different footing.
The Zaleucuses, the Solons, the Lycurguses, were
the most popular men in their respective states.
It was from their popularity, and nothing else, that
they derived their title. They were philosophers
250 B. III. C. III. FORFEITURE OF REPUTATION.
and moralists as well as legislators : their laws had
as much of instruction in them as of coercion : as
much of lectures as of commands. The respect
of the people had already placed the power of the
moral sanction in their hands, before they were
invested with the means of giving direction to the
political. Members of a small state, the people
of which lived as if they were but one family ; they
were better known to the whole people, for whom
they made laws, than with us a member ordinarily
is by the people of the county he is chosen for.
In those days, men seem to have been more
under the government of opinion than at present.
The word of this or that man, whom they knew and
reverenced, would go further with them than at
present. Not that their passions, as it should
seem, were more obsequious to reason ; but their
reason was more obsequious to the reason of a
single man. A little learning, or the appearance
of it, gleaned from foreign nations, gave a man an
advantage over the rest, which no possible supe
riority of learning could give a man at present. Ipsc
dixit is an expression that took its rise from the
blind obsequiousness of the disciples of Pytha
goras : and not ill characteristic of the manner of
thinking of those who pretended to make any use
of their thinking faculty throughout ancient
Greece.*
* Let me be permitted here to illustrate what has been said
of the power possessed by ancient legislators, by a modern ex
ample, borrowed from what to fsome persons will appear a fri
volous subject, and certainly from a frivolous person. The
legislator in question was a master of ceremonies. For a long
series of years, by the authority of opinion, Nash, commonly
called Beau-Nash, regulated at Bath, the conduct of the com
pany assembled at that place during the season : sovereign
arbiter and director of all points pertaining to the custom and
etiquette of the place, of the order in which balls, concerts, &c.
B.III. C.III. FORFEITURE OF REPUTATION. 251
were to succeed each other. How did he goto work? " Let
such a thing be done," said the legislator of the Bath Assemblies.
" Let not such a thing be done." " Let such an Assembly take place
on such a day : that it begin at such an hour, thai it finishes at
such an hour," &c. &c. Setting aside the extreme disparity of
the object, the resemblance is striking between these ordinances
of fashion, and such laws of antiquity as have been handed
down to us. There were no punishments properly so called.
The company assembling met there, confiding in his prudence
and experience in the concerns he had to regulate, put into his
hands a certain quantity of the power of the moral sanction,
and the public voice was ready to be raised against the infrac-
tors of his rules; and laws the weakest in appearance, were
most strictly obeyed.
CHAPTER IV.
OF PECUNIARY FORFEITURES.
WE now come to consider the several kinds of
Forfeitures, and first, the sorts of forfeiture that
bear the name of pecuniary and quasi-pecuniary :
forfeiture of money, and what is exchangeable for
money.
A pecuniary forfeiture is incurred when a man
is, by a judicial sentence, compelled to pay a sum
of money to another, or, as it is in some cases
called, a fine.
As to the methods which may be taken by the
law to inflict a punishment of this sort ; they are
as follows :
1. The simplest course is to take a sum of
money, to the amount in question, out of the phy
sical possession of the delinquent, and transfer it
into the physical possession of the person who is to
receive it ; after which, were he to meddle again
with the money so taken, he would be punished
just as if he had meddled with any other parcel of
money that never was in his possession. This
course can only be taken when it happens to be
known that the delinquent has such a sum in his
possession, and where it lies. But this is seldom
the case.
2. The next and more common expedient is to
take such and such a quantity of what other cor
poral effects he may have in his physical posses
sion as, if sold, will produce the sum in question,
and to make sale of them accordingly, and bestow
the produce as before.
B.III. C.IV. OF PECUNIARY FORFEITURES. 253
3. Another expedient is, to make use of com
pulsive means to oblige him to produce the sum
himself. These means will be either, 1st, the
subjecting him to a present punishment, to be
taken off as soon as he has done the thing required :
or, 2d, the threatening him with some future
punishment, to be applied at such or such a time
in case of his not having done by that time the
thing required.
4. A fourth expedient is to take such property
of his, whether in money or other effects, or
whereof, though the legal right to them, or in a
certain sense the legal possession of them, is in
him, the physical possession is in other people.
As the existence of such legal right, and the place
where the effects in question are deposited, are
circumstances that can seldom be known but by
his means, this makes it necessary to apply com
pulsion to him to oblige him to give the requisite
information.
Of these four expedients, the first and second
commonly go together, and are put in practice
indiscriminately at one and the same operation.
The officer to whom the business is entrusted, if
he finds money enough, takes money : if not, he
takes other effects to make up the deficiency. The
first then may, in future, be considered as included
under the second.
In England, the second and the third have both
of them been in practice from time immemorial :
not indiscriminately however, but according to the
name that has been given to the punishment by
which the money has been exacted. When this
punishment has been called a fine, the third me
thod has been exclusively employed : when it has
been called damages, the second and third have
been employed together, not indeed in their full
254 13. III. C.IV. OF PECUNIARY FORFEITURES.
force, but under certain restrictions too particular
to be here insisted on.
The fourth is comparatively of late invention.
It was first applied to traders by one of the Bank
rupt Laws, and has since been extended by the
Insolvent Acts to persons at large, where the obli
gation they are under to pay money bears the
name of debt. Such is the case in many instances
where that obligation is imposed in a view to
punishment.
SECT. II. PECUNIARY FORFEITURES EXAMINED.
1. As to the evils produced by a punishment of
this kind, they are all reducible to the pain of pri
vation occasioned by the loss of so much money.*
2. Pecuniary forfeiture shares with penal servi
tude in the striking advantage of being convertible
to profit.
The quantity of profit is not limited in this case
as in that. This is its peculiar excellence ; and
this it is that adapts it particularly to the purpose
of compensation.
3. In respect of equality, it is not less advanta
geous. No punishment can be made to sit more
equally than this can be made to sit on different
individuals ; so as the quantum of it be propor
tioned to the means which the delinquent has of
bearing it. For money (that is, the ratio of a
given sum of money to the total sum of a man s
capital) we have already shewn to be the most
accurate measure of the quantity of pain or plea
sure a man can be made to receive. The pleasures
which two men will be deprived of, by being made
to lose each a given part (suppose a tenth) of
* Sec Introd. to Morals and Legislation, Ch. 3.
B.III. C.IV. OF PECUNIARY FORFEITURES. 255
their respective fortunes, will in specie perhaps be
very different ; but this does not hinder but that,
on taking into the account quantity on the one
hand and actual expectations and probable bur
thens on the other, they may be the same ; they
will be the same as nearly as any two quantities
can be made to be so by any rule of measuring.
It is from his money that a man derives the main
part of his pleasures ; the only part that lies open
to estimation. The supposition we are forced to
follow is, that the quantities of pleasure men are
capable of purchasing with their respective capi
tals are respectively equal. This supposition is, it
must be supposed, very loose indeed, and inaccu
rate, because the quantity of a man s capital is
subject to infinite fluctuations, and because there
is great reason to suppose that a richer man is apt
to be happier upon an average than a poorer man.
It is, however, after all nearer to the truth than any
other general suppositions that for the purpose in
question can be made.
4. In point of variability, it is evident nothing can
excel this mode of punishment, as far as it extends.
It commences at the very bottom of the scale. In
this respect it has greatly the advantage over cor
poral punishments, which are always complicated
with a certain degree of infamy ; while in the in
stance of pecuniary punishments, no other infamy
is produced than what is necessarily attached to
the offence.
5. In respect of frugality. Pecuniary punish
ment, especially when the relative quantum of it
is orreat, is liable to a disadvantage which balances
o * o
in some degree against the advantage which it has
of being convertible to profit. Along with the
delinquent, other parties who are innocent are ex
posed to suffer; to wit, whatever persons were
256 B.III. C.IV. OF PECUNIARY FORFEITURES.
comprised within the circle of his dependents.
This suffering is not the mere pain of sympathy,
grounded on the observation of his suffering : if it
were, there would be no reason for making men
tion of it as belonging in a more especial manner
to the present mode of punishment. It is an ori
ginal pain, produced by a consciousness of the loss
which they themselves are likely to incur by the
impoverishment of their principal. This evil again
is not a mere negative evil ; the evil which con
sists in the not being to have the comforts which
had it not been for his impoverishment they would
have had. If it were, there could be no more
reason for taking it into the account on this occa
sion than the pain of sympathy. For, whatever it
be, it is balanced, and that exactly, by the plea
sure that goes to those persons, whosoever they
be, to whose profit the money is applied. The
pleasure resulting from the use of that money is
neither diminished nor increased by the operation:
it only changes hands. The pain then, that is pe
culiar to this species of punishment, is neither
more nor less than the pain of disappointment pro
duced by the destruction of those expectations
which the parties in question had been accustomed
to entertain, of continuing to participate in the for
tune of their principal, in a measure proportioned
to that in which they had been accustomed to par
ticipate in it.
6. In point of exemplarity, it has nothing in par
ticular to boast of. At the execution of it, no
spectacle is exhibited : the transfer of a sum of
money on this account has nothing to distinguish
it from the case of an ordinary payment. It is not
furnished with any of those symbolical helps to
exemplarity which belong to most punishments
of the corporal kind. Upon the face of the de-
B.iri. CH.IV. OF PECUNIARY FORFEITURES. 257
scription, the exemplarity it possesses is in pro
portion to the quantum of it : that is, in the ratio
of the quantum of the forfeiture to the capital of
him whom it is to affect.
There is one case, however, in which it is parti
cularly deficient in this article. This is when it is
laid on under the shape of costs. Upon the face
of the law nothing occurs from whence any ade
quate idea can be drawn of what eventually turns
out to be the quantum of the punishment.
7. In point of remissibility it is in an eminent
degree advantageous. Under no other mode of
punishment can reparation be made for an unjust
sentence with equal facility.
8. In point of popularity this punishment exceeds
every other. It is the only one of any consequence
against which some objection or other of the popu
lar cast has not been made.
In point of quantity pecuniary forfeitures are
susceptible of varieties which may have considera
ble influence on their effects.
The quantum of such a forfeiture, as inflicted by
statute or common law, may be either discretionary
or indeterminate : or if determinate, it may be
either limited or fixed ; and in either case it may
be determined, either absolutely or by reference.
In the latter case, with regard to the standards by
which it is determined, it would manifestly be in
vain to attempt to set any bounds to their variety.
The circumstances most commonly made choice of
for this purpose are 1. The profit of the offence ;
2. the value of the thing which is the subject-
matter of the offence ; 3. the amount of the injury ;
4. the fortune of the offender.
In England a punishment of this kind is known
in different cases by different names, which have
nothing to do with the nature of the punishment
258 B.III.CH.IV. - OF PECUNIARY FORFEITURES.
(that is of the suffering) itself, nor essentially with
the manner in which it is inflicted. They are
taken only from the accidental circumstance of the
manner in which the produce of the punishment is
disposed of.
When this produce is given to the King or his
grantee, the punishment being left unlimited by
the legislature, after the quantum of it has been
settled by a Judge, it is called Fine.
When, after being limited by the legislature, it
has been settled by the Judge, the name employed
to denote it by, howsoever applied, has commonly
been the general term of Forfeiture.
When the quantum of it has been left unlimited
by the legislature, and the produce of it given
to a party injured by the offence, the punishment
is called Damages. In this case the settling of
the quantum has generally been committed to a
SECT. III. - OT QUASI-PECUNIARY FORFEITURES.
By quasi-pecuniary forfeitures I mean the for
feitures of any kind of property that is not money,
but is of such a nature as admits of its being ex
changed for money.
The enumeration of the different species of pro
perty belongs more to a treatise upon civil law
than to a work upon punishments. As many
species of property, so many species of forfeiture.
The observations we have made upon pecuniary
punishments may in general be applied to quasi-
pecuniary punishment. The evil produced by
their infliction may be estimated according to the
pecuniary value lost ; but there is one exception
to be made with respect to objects possessing a
value in affection. An equivalent in money will
B.III.CH.IV. OF PECUNIARY FORFEITURES. 259
not represent any of the pleasures attached to
these objects. The loss of patrimonial lands, of
the house which has passed from father to son in
the same family, ought not to be estimated at the
price for which those lands or that house would
sell.
Punishments of this kind are in general more
exemplary than pecuniary punishments. The
confiscation of lands, of a manor, for instance, more
visibly bears the marks of a punishment, attracts
the attention of a greater number of persons than
a fine of the same or of a greater value. The fact
of the possession is a fact known through all the
district : a fact of which the recollection must be
recalled by a thousand circumstances, and perpe
tuated from generation to generation.
These considerations open a vast field for reflec
tion, upon the use of confiscations of territorial
property, especially in the case of those equivocal
crimes called rebellions or civil wars. They per
petuate recollections which ought to be effaced.
We shall recur to this subject when we speak of
Punishments misplaced. Book IV.
260
CHAPTER V
FORFEITURE OF CONDITION.
WHEN the property under consideration consists
of a real tangible entity, as a house or lands, it
presents itself under its most simple and intelligible
shape : but when it is of an incorporeal nature, it
can only be designated by abstract terms ; and to
explain those terms it is necessary to have recourse
to those real entities from which those fictitious
entities derive their name and their signification.
In order to explain the nature of any particular
condition in life, for example that of husband, it is
necessary to state the right conferred upon him by
the law, over the person, the property, and the
services of an existent being the woman to whom
he is married. To explain the nature of rank it is
necessary to explain the rights that it confers
the exclusive privilege of using a certain title, of be
ing habited in a particular manner, of being entitled
to priority upon certain occasions ; in short, to enjoy
such honours as are attached to the particular rank
in question. So far the effect produced is produced
by the operation of the law. As to the honour itself,
which is the source of their value, depends upon the
moral sanction. It is, however, a species of pro
perty. A man invested with a certain rank is entitled
to receive from persons at large unexigible services,
services of respect, and which will be generally
rendered to him in consideration of his rank.
B.IIJ. CH.V. FORFEITURE OF CONDITION. 261
In respect of offices, public offices, we may point
out the power possessed by the person holding
them over his subordinates, the emoluments that
are attached to them, and the unexigible services
that may result from the possession of them, that
is to say, benefits resulting from the disposition
that may be supposed to be felt by persons at
large to render services to a man placed in an
official station.
By the same process we may explain the nature
of all rights ; for example, the right of voting in a
Parliamentary election. Every person in posses
sion of this right has the privilege of giving a vote,
by which he influences the choice of the person to
be invested with a particular species of power.
The value of this interest, under the present state
of things, consists principally in giving the elector
a certain power over the candidate and his friends.
An honest and independent exercise of this right
is a means of acquiring reputation. To generous
and benevolent minds there also accrues from it a
pleasure of sympathy, founded on the prospect of
public happiness, that is to say, upon the influence
that the choice of a virtuous and enlightened can
didate may have upon the public welfare.
The value of a condition in life, of a right, of a
privilege, being explained to consist in power,
profit, and reputation, that is to say, the pleasures
resulting from the possession of it, we are in pos
session of all the necessary elements for estimating
the evil accruing from their loss, or, in other words,
the magnitude of the punishment occasioned by
their forfeiture.
To give an analytical view of all the modifications
of which property is susceptible, and every species
of forfeiture to which it may be exposed, would
be a work of almost endless labour. We shall con-
262 B.III. CH.V. FORFEITURE OF CONDITION.
tent ourselves here with giving a few examples,
beginning with,
SECT. I. THE MATRIMONIAL CONDITION.
The evils liable to be experienced by the hus
band from the forfeiture of this condition consist
in the loss of the pleasures belonging to it.
1. The pleasures, which are the principal ob
jects in the institution of marriage, may be divided
into, 1st Pleasures of sense ; and 2nd Pleasures
proceeding from the perception of an agreeable
object, which depends partly on the senses, and
partly on the imagination.
2. The innumerable minor pleasures of all
kinds resulting from those inexigible services
which belong to a husband s authority. Not
withstanding their variety, they may be all of
them comprised under the head of pleasures of
possession.
3. The pleasures resulting from the use of the
property derived from the wife : these belong to
the same head as the preceding.
4. Where the wife has separate property, over
which a power of disposal is reserved to her,
pleasure resulting from the hope of becoming pos
sessed of this part of her property. Pleasure of
expectation founded on the pleasures derivable
from the possession of wealth.
5. The pleasure resulting from the persuasion
of being beloved. This affection producing a
variety of uncompellable services, which have all
the charms of appearing to be spontaneous, as
those that are the result of friendship. These
pleasures may be referred to the pleasures of the
moral sanction.
6. The pleasure resulting from the good repute
B.III. CH.V. FORFEITURE OF CONDITION. 263
of the wife which is reflected upon the husband,
and which has a natural tendency, as honour de
rived from any other source, to conciliate to him
the esteem and goodwill of persons in general.
This may also be referred to the pleasures arising
from the moral sanction.
7. The pleasure of witnessing her happiness,
and especially that part of it which he is most
instrumental in producing. This is the pleasure
of benevolence or goodwill.
8. The pleasure resulting from the several un-
compellable services received at the hands of the
family of which he has become a member. This
may be referred to the pleasures of the moral
sanction.
9. The pleasure of power, considered generally,
independently of any particular use that may be
made of it, with which he is invested, in virtue of
the exclusive controul he possesses over the fund
for reward and punishment. This may be referred
to the pleasures of the imagination.
10. The pleasure resulting from the condition
of father. This we shall have occasion to notice
in considering the evils resulting from the forfeiture
of the condition of the father.
This same catalogue, with such slight variations,
as the reader will find no difficulty in making, is
applicable to the condition of wife.
The task of coolly analysing and classifying
feelings of this nature may appear tedious, but it
is not the less necessary if we would estimate
the amount of evil resulting from the loss of this
condition.
SECT. II. THE PATERNAL CONDITION.
The evils resulting from the forfeiture of the
264 B.IIl. C.V. FORFEITURE OF CONDITION.
condition of father may be referred most of them
to the loss of the following pleasures :
1. The pleasures derived from the imagining
his own existence perpetuated in that of his child.
This is a pleasure of the imagination.
2. The pleasure of having at his command,
during the child s minority, the services that he
may be in a condition to render. This is a pleasure
of power.
3. The pleasure of employing, in so far as it
can be done without diminution, the separate
property of this child. This is a pleasure refer
able to two sources, that of father, and of guar
dian (of which presently).
4. The pleasure of filial affection, a pleasure of
the moral sanction.
5. The pleasure reflected upon him by the
good repute of his child. This also is a pleasure,
of the moral sanction.
6. The pleasure of advancing the happiness of
his child : pleasure of benevolence or goodwill.
7. The pleasure derived from the several un-
exigible services that he may hope to receive
from the connections that his son, as he grows up,
may form in the world. Pleasure of the moral
sanction.
8. The pleasure resulting from the sentiment
of paternal power. This is a pleasure of the
imagination.
9. In some cases the pleasure derived from the
expectation of becoming possessed of the whole
or a part of the property the child may have
acquired, or in case of his death the actual pos
session of such property. Pleasure in the one
case of expectation founded on the pleasures
derivable from the possession of wealth, in the
other case from the actual possession of wealth.
B.III. C.V. FORFEITURE OF CONDITION. 265
SECT. III. CONDITION OF CHILD.
Pleasures belonging to the condition of child :
1. The pleasure derived from the use of the
exigible services of the parent.
2. The pleasure resulting from the power of
using certain parts of the property belonging to
the father.
3. The pleasure resulting from the persuasion
of being beloved by him.
4. The pleasure derived from the good repute
of the father, which is reflected upon the child.
5. The pleasure of witnessing the father s hap
piness, and of contributing to promote it : a
pleasure rendered more vivid by being accom
panied with sentiments of gratitude.
6. The pleasure resulting from the connections
of the father, and the right he may have to cer
tain services at their hands.
7. The pleasure derived from the hope of inhe
riting the whole or a part of his father s property,
or if he be dead, from the possession of the pro
perty.
SECT. IV. PLEASURES DERIVED FROM THE CON
DITION OF TRUSTEE.
The pleasures resulting from standing in the
condition of trustee, are the following :
1. The pleasure resulting from the hope of con
tributing to the happiness of the individual whose
interest is in question. This is a pleasure of bene
volence or goodwill.
2. The pleasure derived from the hope of the
inexigible services to be expected from the grati
tude of the individual in question. Pleasure of the
moral sanction.
266 B.III. C.V. FORFEITURE OF CONDITION.
3. Pleasure founded on the hope of receiving
inexigible services at the hands of persons bene
fited by the being entrusted with the use of the
trust property. This also is a pleasure of the
moral sanction.
4. Pleasure founded on the hope of sharing in
the esteem, the goodwill, and the inexigible ser
vices of the different persons to whom his capacity
and probity in the management of the trust pro
perty may have become known. This is also a
pleasure of the moral sanction.
5. When a salary is annexed to the duty : plea
sure of pecuniary profit.
It is but too well known, that the pleasures
respectively belonging to these conditions are lia
ble to vanish, and at any rate to be alloyed by a
corresponding set of pains. These pains are too
obvious to need insisting on. The value of any
such condition may therefore be either positive or
negative ; in plain terms, a man may either be the
better for it or the worse. Where the value of it
is positive, it will consist of the sum of the values
of the several pleasures after that of the several
pains had been deducted : when negative, as the
sum of the value of the pains after that of the plea
sure has been deducted. When therefore the value
of any such condition happens to be negative, a
sentence taking a man out of it, must needs operate
not as a punishment but as a reward.
With regard to those pleasures or benefits which
are common to several of the above conditions, it
is manifest that, though the pleasure is in each of
these several cases nominally the same, they are
liable to be very different in point of value. Thus
the pleasure of contributing to the happiness of
the person who forms the other term in the rela
tion, is incident to the condition of parent, and also
B.I1I.C.V. FORFEITURE OF CONDITION. 2G7
to that of a guardian : but it is more certain and
more vivid in the case of the father than in that of
the guardian. To engage, however, further in
such details, besides their being so obvious, would
lead us from the subject of politics to that of
morals.
Let us now proceed to consider the manner in
which the several forfeitures may be produced, or,
as the case be, any part of them may be em
ployed as an instrument of punishment.
The advantages of the conjugal condition may
be substracted as a punishment by a judicial sen
tence, declaring that the offender is not, or shall
not be any longer considered as the husband or
wife of the person in question.
The consequence of such sentence would be,
not completely to destroy the advantages of that
condition, but to render them precarious.
If after this sentence has been pronounced they
cohabit, or are suspected of cohabiting together,
the woman is considered as a concubine. When
this sort of connexion is known to subsist, it is in
some countries punished by the moral sanction, in
others, both by the moral and political.* By legal
divorce, a man is also deprived in the whole or in
part of the inexigible services derived from the
right he has over the property of his wife, and
especially of those services derived from cohabita-
* By the laws of the State of Connecticut (North America)
" If a man aud woman who have been divorced shall again
cohabit together as man and wife, they shall be punished as
adulterers ;" and " the punishment for adultery is discretionary
whipping, branding in the forehead with the letter A, and
wearing a halter about the neck on the outside of the garments
so as to be visible. On being found without the halter, on
information and proof made before an assistant or justice of the
peace, he may order them to be whipped not exceeding thirty
stripes." Swift s Laws of Connecticut, vol. ii, p. 328.
268 B.III. C.V. FORFEITURE OF CONDITION.
tion, it would make him dependant upon her with
respect to the testamentary disposition over such
part of her property of which she might have an
absolute power of disposal.
With respect to the pleasures derivable from the
relation of father, the law, it is true, cannot de
prive a man altogether of the pleasures connected
with this condition, but it may be greatly embit
tered ; as, for example, by a retrospective sen
tence, declaring his children to be illegitimate.
Upon those who might be born subsequent to the
sentence of divorce, the punishment would fall
with much greater certainty, for the public opi
nion, which would not be forward in supporting the
degradation of children born under the faith of
lawful wedlock, would not exercise the same
indulgence towards those who were born after a
divorce.
The paternal and filial condition may, in so far
as the nature of the case admits of it, be in the
same manner substracted by a judicial sentence,
declaring that the offender is not, or shall no longer
be considered as, the father or the son of the per
son in question.
The certain effects of a sentence of the kind in
question, in respect of the father, would be to de
prive him of all legal power over the person of his
child : in respect of the child, to deprive him of
taking by inheritance or representation the pro
perty of his father.
As to the other advantages derivable from these
relations, the sentence may or may not have any
effect, according to the feelings of the parties in
terested : its operation will depend upon the
father and the son upon their more immediate
connections, and upon the public in general.
As to the office of guardian and other offices of
B.III.C.V. FORFEITURE OF CONDITION. 269
a fiduciary nature, the sentence will operate to the
whole extent of those offices : a legal interdiction
of all the acts annuls all the advantages issuing
from them.
It may at first sight appear extraordinary that a
power should be attributed to the magistrate, of
destroying relations founded in nature. It is, it
may be observed, an event an event that has
already happened ; and how can it be in the
power of any human tribunal to cause that which
has taken place, not to have taken place ? This
cannot be accomplished ; but the magistrate may
have power to persuade people to believe that an
event has happened in a manner different from
what it actually did happen. It is true that, upon
the parties themselves, and upon the persons who
have a direct knowledge of the fact, the power of
the magistrate, as to this purpose, is altogether
nugatory, but with the public at large an assertion
so sanctioned would have the greatest weight.
The principal obstacle to the exercise of any such
power, however, is, that a declaration to this effect
as a penal instrument would, upon the face of it,
bear marks of its own falsehood. This is a dilemma
from which there is no escaping. If the offender
is not the father of the person in question, to
declare that he is not is not an act of punishment :
if he is his father, the declaration is false.
The idea of employing as a mode of punishment
the subtraction of any of the rights attached to the
several conditions as above, is not however so extra
vagant as at first might be imagined. If not the same
O C7 O
thing, what approaches very near to it is already
in use.
This object may be effected in two modes; one,
the endeavouring to cause it to be believed that the
270 B. III.C.V. FORFEITURE OF CONDITION.
offender does not stand in the relation of father or
of son, as the case may be, to the person regarded
as such : the other is in endeavouring to cause it
to be believed that from the non-observance of
some legal form, the progeny is illegitimate.
A case somewhat analogous to this, is that
famous one upon which so many volumes have
been written corruption of blood; or, in other
words, the perfection of inheritable blood. The
plain object, stripped of all disguise, is to prevent
a man from inheriting, as he would have done if
this punishment had not been pronounced: but
what is endeavoured to be done by the help of this
expression is, to cause it to be believed that the
blood of the person in question undergoes some
real alteration, which is a part of the punishment.
Another example in which, at least in words, a
control is assumed over events of the description
of those in question, is by that barbarous maxim
that a bastard is the son of no one ; a maxim which
has a tendency, as much as it is in the power of
words to give it, to deprive a man of all parental
connexions. It is not, however, ever employed as
a punishment.
Another example, opposite to the preceding one,
is that other legal maxim, pater est quern nuptifE
demonstrant: a maxim by which sanction is fre
quently given to a palpable falsehood. By recent
decisions, the severity of this rule has however
been relaxed, it being now settled that though
marriage is to be considered as presumptive proof
of filiation, it may be rebutted by evidence of the
impossibility of any connexion having taken place.
In France, a mode of punishment has been em
ployed which, it is true, without any such pre
tence as that of destroying the fact of parentage,
B. III. C.V. FORFEITURE OF CONDITION. 271
endeavoured, as far as might be, to abolish all
trace of it, by imposing on the person in question
the obligation of changing his name.*
The same punishment has been employed in
Portugal. f
The punishment, consisting in the forfeiture of
credibility, is another example, no less remarkable,
of an attempt to exercise a despotic control over
the opinions of men. As part of the punishment
for many sorts of offences, which do not import
any want of veracity, the offender is declared to
have lost all title to credence : the visible sign of
this punishment is the not being permitted to de
pose in a court of justice.
The forfeiture of the conjugal condition, at least
to a certain extent, is frequently among the conse
quences of imprisonment, especially when with
imprisonment is combined penal labour. This
part of the punishment is not formally denounced,
but it is not the less real. It is not ever in express
terms declared that a man is divested of this con
dition ; but he is in fact precluded from the prin
cipal enjoyments of it, and the condition separate
from the pleasures that belong to it is evidently
nothing more than a mere name. The forfeiture is
temporary or perpetual, according as the impri-
ment is either one or the other.
SECT. V. CONDITION OF LIBERTY.
Liberty being a negative idea (exemption from
obligation,) it follows that the loss of liberty is a
positive idea. To lose the condition of a freeman
is to become a slave. But the word slave or state
* This was done in the case of Damiens and Ravaillac.
+ In the case of certain persons convicted of an attempt
against the life of the King.
272 B. III. C.V. FORFEITURE OF CONDITION.
of slavery, has not any very definite meaning
which serves to designate that condition, as exist
ing in different countries. There are some coun
tries in which slavery is unknown. In countries
in which slavery is in use it exists under different
forms, and in different degrees. The pain of ser
vitude would be different, according to the class to
which the offendec might be aggregated.
Slaves are of two classes they may belong to
the government or to individuals.
The condition of public slaves, determined by
regulation, fixing the nature and amount of the
work, and the coercive punishmentsby whi the
performance of it may be compelled, is not distin
guishable from the condition of persons condemned
for life to penal labour : if there exist no such
regulations, it varies little from private slavery.
A public slave, unprotected by any such regula
tions, is placed under the despotic controul of an
overseer, who is bound to employ him, for the
benefit of the public, in a certain sort of occupa
tion : this power, arbitrary as it is, does not extend
to life and death. This condition varies very little
from that of private slavery. A negro, for exam
ple, employed upon a plantation belonging to
the crown is not from this circumstance in a
condition greatly superior to what he would be in
if standing in the same relation to a private indi
vidual, who, instead of being his own overseer,
employed an agent for that purpose.
The most ready means of forming a correct con
ception of the condition of slavery, is by consider
ing it in the first instance as absolute and unli
mited. In this situation the door is exposed to
every possible species of evil. The punishment
designated then by the expression forfeiture of
liberty, is no other than the being exposed to a
B.III. C.V. FORFEITURE OF CONDITION. 273
greater or less chance, according to the character
of the master, of suffering all sorts of evils : that
is to say, of all evils resulting from the different
modes in \vhich punishment may be inflicted.
To form an accurate notion of this situation, all
that is required, is to glance the eye over all the
possible varieties of punishment. The slave, with
respect to the individual standing in the condition
of master, is absolutely deprived of all legal
protection.*
Such is the nature of slavery under its most
simple form : such is the nature of the total de
privation of liberty. The different restrictions
that may be imposed on the exercise of this
power, renders the state of servitude more or less
mild.
There are then two heads to which the evils
resulting from this condition may be referred.
1. The risk, on the part of the slave, of being
subject to every possible evil : with the excep
tion of such only as the master is expressly pro
hibited from inflicting. 2. The continuity of the
pain founded on the apprehension of these suf
ferings.
SECT. VI. CONDITION* OF POLITICAL LIBERTY.
I shall say but one word upon a subject that
would require a volume.
The loss of political liberty is produced by a
change in the condition: not merely of any particular
individual, but of the whole community. The loss
of liberty is the result of a fresh distribution of the
* Such a condition would be too rigorous for criminals : it is
for innocent men that it is reserved.
T
274 B.11I. C.V. FORFEITURE OF CONDITION.
power of the governing body ; a distribution
which renders the choice of the persons, or their
measures, less dependant upon the will of the per
sons governed. A fresh distribution of power
depends absolutely upon a corresponding dispo
sition to pay obedience to that fresh distribution.
When superior physical force is in the possession
of those from whom obedience is demanded, it is
evident that the power of commanding can be
exercised only in so far as that obedience is ren
dered. As this disposition to pay obedience may
be produced by the conduct of a single individual
of the governing class, it may be, and has fre
quently been said, that a single man has destroyed
the constitutional liberty of a whole nation. But
if the analysis of such events be followed out, it
will be found, that this liberty can be destroyed
only by the people themselves.
275
CHAPTER VI.
FORFEITURE OF THE PROTECTION OF TPIE LAW.
A CLASS of forfeitures as miscellaneous and ex
tensive as any, and the last that we shall now take
notice of, is that of the protection, whatever it be,
which the law affords a man for the enjoyment of
the objects of possession. This is not altogether
the same thing with a forfeiture of the possessions
themselves. In the instance of some of them, the
law, by taking from him the possessions themselves,
excludes him, by sure and physical means, from
the enjoyment of them. In the instance of others,
the law, without taking away from him altogether
the physical capacity of enjoying them, punishes
him in the case of his attempting to enjoy them.
In the remaining cases, the law uses not either of
those compulsive methods : it, however, does an
act by which the parties on whose choice the en
joyment of the object in question depends, are dis
posed, on pre-established principles, to put an end
to it. It therefore, in this case, likewise becomes
still the author of the punishment. This is the
case with the forfeitures in which the political
sanction produces its eifect : not by its own imme
diate energy, but by the motion it gives, if one may
so say, to the moral and religious sanctions.
In the case of forfeiture of protection, the law
takes no such active part. All it does is this. It
simply withdraws in part, or altogether, that pu
nishment by means of which it protects a pos-
276 B.III.C.VI. FORFEITURE OF PROTECTION, ETC.
sessor in the enjoymentof those several possessions.
If then, every man refrain from disturbing him in
the enjoyment of any such possession, it is well
the law does nothing of itself to prompt them to it.
But if any persons of their own notion choose to
disturb him, it is also well the law does nothing of
itself to hinder them. Forfeiture of protection is
in short neither more nor less than the forfeiture of
the use of the ministers of justice, that is, of such
persons whose business it is to protect the several
members of the community in the enjoyment of
their respective rights.
Between forfeiture of protection, and forfeiture
of capacity, the difference is, that by the latter,
the law does what is necessary to prevent a
man s acquiring a possession : in the former, it
forbears to do anything to prevent his losing it.
When considered with reference to the individual
who has forfeited the protection of the law, this
species of punishment may be called forensic dis
ability ; it forms part of the artificially complex
punishment of outlawry ; the consideration of
which will be subsequently resumed.*
* Book v. ch.v.
RATIONALE OF PUNISHMENT.
BOOK IV.
OF THE PROPER SEAT OF PUNISHMENT : OR SAY, OF
MIS-SEATED PUNISHMENT.
WHAT is here meant by mis-seated punishment
is not that which in another place was meant by
groundless punishment.
The case in which the epithet groundless was
applied to the subject punishment, is that in
which by the supposition there was no offence in
the case, no act to which, by the annexation of
eventual punishment, any such character as that
of an offence ought, by the legislature, to have
been superinduced.
The case in which the epithet mis-seated is
applied to the same subject, the case which on the
present occasion is in view is that in which there
exists an offence, that is, an act fit to be, as above,
converted into an offence an act to which it is fit
that punishment be accordingly attached, and in
which case punishment is attached accordingly.
Thus far all is right : but what there is wrong in
the case consists in this, that punishment is to be
found, which, in consideration of the same offence,
has been attached to a wrong person : that some
278 B.IV. PROPER SEAT OF PUNISHMENT.
persons, one or many, are to be found on whom,
in respect of that same offence, no punishment
from which they could have been saved ought to
have been attached, but on whom punishment, of
some sort or other, from which they might have
been saved, does notwithstanding stand attached.
When, in so far as by appointment of the legis
lator or of the Judge, acting (as in all cases of
unwritten or judge-made law) in the place of the
legislator, punishment is inflicted on any person
by whom no part has been borne in the offence, it
may be said to be mis-seated : seated in a place
which is not its proper place.
In this case, if along with the non-offender, no
offender suffers, the mis-seated punishment may
be, as in practice it has been termed, vicarious : if
in the contrary case, extravasated punishment
that is, flowing in a wrong channel.
Punishment ought naturally to be the work of
reflection : but whether it be vicarious or extra
vasated, should there be found an instance in
which the infliction of it appears to have been
the result, not so much of reflection and thought,
as of want of thought, (and the mass of such in
stances will be found but too extensive) in such
case it may be termed random punishment.
Punishment (which is mis-seated, and in par
ticular that which is in an extravasated state),
may be so unavoidably or avoidably.
First, as to the case in which the extravasation
is unavoidable. On another occasion, in another
work, and for another purpose, this case has
already been brought to view : viz. under the
head of " Circumstances iiifluencing sensibility "*
Whether in the way and for the purpose of
* Introduction to Morals and Legislation.
B. IV. PROPER SEAT OF PUNISHMENT. 279
punishment, or in any other way, and for any other
purpose, a man cannot be made to suffer, but his
connections, if he have any always his connec
tions in the way of sympathy, frequently his
connections in the way of interest, (understand
self-regarding interest) are made to suffer along
with him : and forasmuch as it can only be by
some rare accident, that a man can be found, who
has not in either of those ways any connections ;
thence it follows, that if where it is unavoidable,
the certainty or probability of its extravasation
were regarded as a sufficient cause for forbearing
to inflict punishment, it would only be by a
correspondently rare accident, that any thing
could be done for the prevention of offences of
any sort) the consequence of which would be
general impunity to crimes and other offences of
all sorts, and with it the destruction of society
itself.
In so far as it is mis-seated, and is not unavoid
ably so, punishment, it is almost needless to ob
serve, is, with reference to the person on whom it
is thrown, groundless : as such it is thrown away :
it is so much evil expended in waste : reforma
tion, determent, disablement it contributes not
any thing to any one of the proper ends of pu
nishment ; not so much as to vindictive satis
faction for injury, at least to any mind that is
not more or less deranged ; it is repugnant to
utility, inconsistent with humanity, inconsistent
with justice.
To all these it is repugnant ; but what it is not
repugnant to, is English law, written as well as
unwritten ; for under both these dispensations,
instances of it are to be found instances alto
gether deplorable in extent as well as abundance.
When the epithet unavoidable is on this occasion
280 B. IV. PROPER SEAT OF PUNISHMENT.
employed, some such limitative clause as is ex
pressed by the words without preponderant incon
venience must be understood. For, in point of
possibility, punishment, L e. the infliction of
suffering on that score, being on the part of the
legislator and the Judge an act of the will, to
avoid inflicting it will on this as on every other
occasion, be respectively in their power at all
times, not only on this but on every occasion.
On so simple a condition as that of seeing govern
ment, and with it society itself, perish, you may
avoid inflicting punishment altogether.
Bearing continually in mind this necessary and
not unobvious limitation, in answer to the ques
tion, what, in regard to mis-seated punishment,
ought to be the conduct of the legislator, two
simple propositions may be laid down without
difficulty.
1. One is Where it is unavoidable, mis-seated
punishment may be employed.
2. Where it is avoidable, mis-seated punishment
ought in no case to be employed.
Unhappily there exists not a system of esta
blished law which does not exhibit instances in
which mis-seated punishment is thus wrongfully
employed.
First, as to the case when the application thus
made of the matter of punishment is unavoidable :
not to be avoided without letting in, in some other
shape, evil in such a quantity, as after deduction
made of the evil saved on the score of punish
ment, shall leave a nett balance on the side of
evil upon the whole.
Now, taking the matter on the footing of the
principles of utility, punishment, however mis-
seated, not only may be, but ought to-be intro
duced : and on the part of him by whom that
B.1V. PROPER SEAT OF PUNISHMENT. 281
principle is embraced, and taken for his constant
guide, to say that of punishment so circumstanced
that it ought not to be introduced, would be
equivalent to a contradiction in terms.
But, says an objector, punishment in so far as
it is inflicted falls upon the guiltless, and to inflict
punishment on the guiltless is to violate one of the
most important, and fundamental, and universally
recognized principles of justice.
The answer is this being one of those prin
ciples which in substance are continually alluded
to, but which in truth are not any where to be
found, cannot with propriety be employed in the
character of an objection to any rule which, stand
ing expressed in a determinate form of words, is
seen to be unexceptionable.
To inflict punishment when, without introducing
preponderant inconvenience, the infliction of such
punishment is avoidable, is, in the case of the
innocent, contrary to the principle of utility.
Admitted : and so is it in the case of the guilty
likewise.
To punish where, without introducing prepon
derant inconvenience, such punishment, is una
voidable, is not in either case contrary to the
principle of utility : not in the case of the guilty :
no, nor yet in the case of the innocent.
What then are the cases in which the applica
tion of punishment to the innocent is avoidable ?
What the cases in which it is unavoidable ?
Answer. Wheresoever, punishment not being,
in the case in question, in itself undue, it is in
your power to apply to the guilty punishment in
as great a quantity as (supposing it actually ad
ministered) is commensurate to the end of punish
ment namely, without having recourse to the
innocent, there the evil, whatsoever it be, that
282 B.IV. PROPER SEAT OF PUNISHMENT.
would be produced by the infliction of punishment
on the innocent is avoidable.
Now the fact is, and so it will be found, that
(with the exception of such suffering as extra-
vasates and overflows upon the innocent, in
consequence of their connexion in the way of
sympathy or particular and casual interest)
wheresoever the nature of the case admits of
the distinguishing who is innocent from who is
guilty, the infliction of suffering on the innocent
is avoidable.
Define punishment in a certain way, and even
the above limitation need not be made. Say
that to give it the character of punishment, it is
necessary that the suffering that is inflicted should,
the whole of it, be directly intentional ; that is,
either mediately or ultimately intentional ; and in
that case, such part of the suffering as, in virtue of
their connexion with the guilty person, falls un
avoidably upon third persons (a wife or husband,
children, relations, dependants, friends or credi
tors, and so forth) is not punishment does not
come under the denomination of punishment.
This, however, is but a question of words.
Take any lot of evil you will, such as it is, it is,
whatsoever be its name. Say that it is punishment,
the reason for avoiding to produce it, if unavoidable,
will not be the stronger ; say that it is not punish
ment, the reason for avoiding to produce it, if
avoidable, will not be the weaker.
III. NATURALLY EXTRAVASAT1NG PUNISH
MENT. RULES CONCERNING IT.
In regard to such punishment as comes under
the denomination of derivative or naturally extra-
B.1V. PROPER SEAT OF PUNISHMENT. 283
vasating punishment, the following seem to be the
rules that may be laid down.
1 . The consideration that the lot of punishment
in question comes under the denomination of deri
vative or extravasating punishment punishment
overflowing upon the guiltless from the guilty
can never of itself constitute a sufficient reason for
forbearing to inflict such punishment.
For were that a sufficient reason, punishment
could not, in the way of legislation, be appointed
in any case.
2. In so far as punishment not coming under
this denomination is capable of being inflicted to a
sufficient amount, without the addition of any
punishment which comes under this denomination,
in other words, in as far as properly seated punish
ment to a sufficient amount is capable of being
inflicted without the addition of derivative or ex
travasating punishment, no such addition ought
by the legislator to be appointed, viz. either pre
scribed or authorized.
3. For so far as, without prejudice to the suffi
ciency of the remainder, the lot of punishment
actually to be inflicted is capable of being cleared
of derivative or extravasated punishment (punish
ment or suffering borne by those who have had
no share either in the commission of the offence
or in the benefit of the offence) such clearance
ought always to be made.
4. In the account taken of the suffering for the
purpose of any punishment which is about to be
inflicted by the Judge, such derivative suffering
ought always to be comprised : comprised, in the
first place, in respect of what it is in itself and of
itself; in the next place, in respect of the pain
which, if inflicted on the innocent connexions of
the guilty person, it may be expected to produce,
284 B.IV. PROPER SEAT OF PUNISHMENT.
viz. in the shape of a pain of sympathy, in the
bosom of the guilty person himself.
5. Accordingly, in the case of a delinquent
having such connections, to the end that the real
quantity of punishment may not be greater than
in the case of a delinquent in the same degree of
delinquency having no such connections, the no
minal may be, and so far as the deduction is
capable of being made with sufficient precision,
ought to be, made by so much the less.
6. For the purpose of making any such allow
ance as may be requisite on this score, proceed
thus : In the first place, settle with yourself what
would be a sufficient punishment, on the suppo
sition that the delinquent had no connexions :
then, enquiring into such connexions, if any, as he
has, proceed to make such abatement, if any, as
may be requisite on this score.
7. For any such purpose, the view of the Judge
must not absolutely confine itself to the connexion
itself, the outward and visible sign and presump
tive evidence of the internal and invisible sympa
thy, viz. the fact that the delinquent has a wife,
has children, has other persons in his dependence.
Of the existence of the degree of sympathy natu
rally and usually attached to the species of rela
tionship in question, the existence of the relation
ship itself may, it is true, be received in the cha
racter of primd facie or presumptive evidence.
Such evidence as, in default of evidence to the
contrary, may be taken for conclusive.
But supposing any such contrary evidence to be
offered, or to be capable of being, without prepon
derant inconvenience, collected, such presumptive
evidence as above mentioned ought not to be
taken and acted upon as if conclusive.
If for example it appear that in consequence of
B.IV. PROPER SEAT OF PUNISHMENT. 285
ill usage inflicted by him, his wife has been sepa
rated from him, it is not right that, on that
account, he should be let off with a less punish
ment, merely because he has a wife : if it appear
that, in consequence of ill usage, or desertion, or
neglect, on his part, children of his have been
taken in hand and provided for by some relation or
private friend, or some public institution, it is not
right that, merely because he has children, he should
be let off with a less punishment, as above.
8. In so far as it is in the nature of the punish
ment to extract and provide any quantity of mat
ter applicable to the purpose of compensation, the
legislator and the Judge, respectively acting
within their respective spheres, ought not, in the
care taken by them to avoid the production of
unnecessary mis- seated punishment, to confine
themselves to negative measures.
If, for example, either by the general nature of
the appointed punishment, imprisonment, for ex
ample, or banishment, or death, a separation is
made, or to the purpose in question, by special
appointment, can be made, between the lot of the
delinquent and the lot of his guiltless connexions,
it may be right, out of and to the extent of the
pecuniary means of the delinquent, to make a pro
vision for his guiltless connexions.
9. In other words. So far as can be done,
without reducing to too low a pitch the suffering
inflicted on the delinquent, the claims of any
guiltless connexion of his, to be saved harmless
from such mis-seated punishment, as would other
wise be made to overflow upon them from the
punishment inflicted upon him, should have the
preference over the interest of the public purse.
This rule may, without reserve or difficulty, be
in its full extent applied to ordinary creditors, to
286 B.IV. PROPER SEAT OF PUNISHMENT.
persons whose connexion with the delinquent is
accordingly a connexion purely in the way of
interest, unaccompanied with any such connec
tion as in the case of wife and children, or other
near relatives, has place in the way of sympathy.
For example, to speak particularly and precisely,
on the score and for the purpose of punishment,
money extracted from the pocket of a delinquent
ought not to be poured into the public purse, such
sum excepted as, if any, remains to be disposed
of, after satisfaction of all just and bond Jide
demands made, or capable of being made, by
creditors.
SECT. I. PUNISHMENT APPARENTLY, BUT NOT
REALLY MIS-SEATED CIVIL RESPONSIBILITY.
One class of cases may be marked out in which
a punishment to which it may happen in appear
ance to be mis-seated is not mis-seated in reality.
The offence is committed by A, who is a person
under power ; the punishment is inflicted on B, in
whom the power resides. In other words, the
superordinate is made responsible for the subor
dinate.
To this class of cases may be aggregated the
following :
"the husband for the wife.
the father for the children.
the guardian for his ward.
the madman s keeper for mad-
T-> M -iv rl man.
Respons.ba.ty of \ the gaoler for prisoners
the sheriff for the gaoler,
the military commander for sub
ordinates,
tthe master for his servants.
B.IV. PROPER SEAT OF PUNISHMENT. 287
In all these cases, though to appearance the
punishment may be mis-seated, yet in point of
fact the punishment is inflicted on the person hav
ing the power, not under the notion of innocence
on his part, but in contemplation of delinquency
on the score of negligence for an ill choice of, or
want of attention to, his subordinates. It is on
his part a transgression of the negative cast, con
sisting in the omitting to take proper precautions
for the prevention of the positive offence com
mitted by his subordinates.
Under our law, the sheriff is punished if any of
the prisoners under the gaoler s custody escape.
The sheriff has not the immediate custody of the
prisoners ; his other duties are incompatible with
that. From this circumstance alone then there is
no reason for supposing any complicity on his
part. But the gaoler is appointed by him ; and
the object of the law is to render him circumspect
in his choice. The gaoler himself is the person
immediately responsible, but as the safe custody
of prisoners is a matter of the highest importance,
the punishment levelled at the sheriff is in the
highest degree expedient, and the more so as the
amount of it is in certain cases left to the discre
tion of the Judge.
The responsibility thus imposed on superiors for
the acts of their subordinates is founded not only
on the reasons above mentioned, but on others
equally substantial, which have been more parti
cularly developed in another work.*
SECT. II. MIS-SEATED PUNISHMENT, VARIETIES OF.
Punishment is mis-seated in either of two cases
1. Where the delinquent himself is not made to
* Traites de Legislation, torn, ii, p. 362.
288 B.I.V. PROPER SEAT OF PUNISHMENT.
suffer at all, but some other is in his stead.
2. When the delinquent himself is punished and
some other guiltless person with him in virtue of
an express provision by law.
If the delinquent himself is not punished, but
some other person is in his stead, the punishment
may be called vicarious punishment. It is thus
that in the case of a suicide, who is of course
removed beyond the reach of human punishment,
suffering is inflicted on his wife, his children, or
his dependants.
When in virtue of a social connexion between
the delinquent and some other person, it passes
from the delinquent upon that other, it may be
stiled transitive punishment. It is thus that in
our law the children and other descendants in
many cases are punished with their parents, for
the delinquencies of their parents and other
ancestors.
Where a large body of persons are punished at
once, upon a presumption that the delinquent or
delinquents are to be met with in that body, it
may be stiled collective punishment. Thus it is, in
our law, corporations are in several cases punish
able for the delinquencies of the co-corporators.
Lastly, where along with the delinquent a per
son is punished who is a total stranger to him ;
the punishment in this case may, as far as the
stranger is concerned, be stiled random punishment.
Thus it is that by our law a person who, after
certain acts of delinquency secretly committed,
has bought land of the delinquent, loses his money
and the land.
Punishment by lot, as is sometimes practised
where the delinquents are numerous, as in large
bodies of soldiery, comes not within this case.
The persons who are made to cast lots are all
B.IV. PIlOPEll SEAT OF PUXISIIM E N T. 289
supposed to be delinquents. There is therefore,
no punishment but what is /;/ propriam pcrsonam
in this case. It is not random punishment, but
random pardon.
In vicarious punishment, we see it is a third
person, as the phrase is, that is punished alone.
In transitive punishment, a third person with
the delinquent in virtue of his connection with
him. In collective punishment, a large body of
third persons, uncertain and indeterminate, because
probably the delinquent is of the number. In
random punishment, a single third person, who, for
certain is not the delinquent, and with whom the
delinquent has nothing to do.
SECT. III. VICARIOUS PUNISHMENT.
The case in which punishment is in the most
palpable degree mis-seated, is that in which it has
received the name of vicarious : Upon the person
who has had any share, in the offence, no punish
ment is inflicted, yet upon the same occasion,
punishment is inflicted upon this and that person,
who has not had any share in the offence.
In the reign of James I, there lived a Sir Kenelm
Digby, who besides being a person of quality, was
an adept in the science of medicine. Dressing of
wounds is among the number of those operations
that are attended with pain and trouble. By
means of a powder of Sir Kenelm s invention, this
inconvenience was saved. In addition to this
powder, all that he required for the cure of the
most desperate wound, was a little of the blood
that had been made to flow from it. To this
blood a competent dose of the powder being
applied, the wound closed, and the cure was
radical. The presence of the patient was no more
necessary, than to our present quack doctors.
290 B.IV. PROPER SEAT OF PUNISHMENT.
While the compound of powder and blood, was
lying upon Sir Kenelm s shelves the patient might
be at the antipodes.
Exactly of a piece with the therapeutics that
invented this sympathetic powder, for such was the
name which by the author was applied to it, are
the politics that gave birth to vicarious punish
ment.
I was about to exhibit the absurdity and mis
chief of this mode of punishment, but what end
would it answer ? A simple statement, that one
man is punished for the offence of another, is
calculated to produce a stronger impression on the
mind, than could be produced by the aid of logic
and rhetoric. An error so extravagant could
never have been acted on, but from confusion of
ideas, or upon suppositions, the improbability of
which was altogether lost sight of.
In the English law, the only instance which
is to be seen of a case of mis-seated punishment,
which is clearly and palpably vicarious, is that of
the punishment attached to suicide. It may per
haps be said, that the man himself is punished as
much as the case will admit of; that his body used
to be pierced with a stake, that he is still buried
with ignominy, and that with respect to him,
everything that could be done, is done ; that this
is not found sufficient, and that as an additional
check to the commission of this offence, it is
necessary to call in aid the contemplation of the
sufferings that his wife and children may endure
by his death. But the effect of this contrivance
is obviously very trifling. The prospect of the
pain he shall suffer by continuing to live, affects
him more than that of the pain it seems to him
they will suffer upon his putting himself to death.
He is more affected then with his own happiness
B.IV. rilOPKll SEAT OF PUNISHMENT. 291
than with theirs. The selfish predominate in his
mind over the social affections. But the punish
ment of forfeiture, that is the punishment of those
relations and friends, can have the effect of pre
venting his design upon no other supposition, than
that the social affections are predominant in him
over the selfish, that he is more touched by their
suffering than by his own; but this is shewn by his
conduct not to be the case.
Nor is this all ; it is not only nugatory as to its
declared purpose, but in the highest degree cruel.
When a family has thus been deprived of its head,
the law at that moment steps in to deprive them of
their means of subsistence.
The answer to this may be, that there is some
species of property, which upon this occasion is
not forfeited, that the law is not executed, that the
Jury elude it, by finding the suicide to be insane,
and that, moreover, the King has the power of
remitting the forfeiture, and of leaving to the
widow and orphans the paternal property.
That such is the disposition of Juries, and of thje
Sovereign is undeniable : but is that a reason for
preserving in the penal code, a law that it is consi
dered a duty invariably to elude ? And by what
means is it eluded ? By perjury. By a decla
ration made by twelve men, upon oath, that the
suicide was deranged in his mind, even in cases in
which all the circumstances connected with the
case exhibit marks of a deliberate and steady
determination. The consequence is, that every
suicide who dies worth any property, is declared
to be non compos. It is only the poorest of the
poor, who, after making the same calculation that
was made by Cato, and, finding the balance on
the same side, act accordingly, that are ever
found to be in their senses, and their wives and
292 B.IV. PROPER SEAT OF PUNISHMENT.
children to be proper victims for the rigour of
the law. The cure for these atrocious absurdities
is perjury : perjury is the penance, that at the
expense of religion, prevents an outrage on
humanity.
In speaking of vicarious punishment, in order
to avoid the confusion that might be produced
by its liability to be ranked under this head, it
may be necessary to mention a case belonging to
the subject of international law. The case of
reprizals in war. By a foreign nation, innocent
persons are subjected to the most rigorous punish
ment to confinement, and even to death, the
real author of the offence not being in the
jurisdiction of the foreign state. The exercise
of this power is justified by necessity, as a means
of preventing the infliction of injuries not war
ranted by the rules of war.
This is not strictly speaking vicarious punish
ment. The reprizals inflicted on his subjects,
operate upon the Sovereign himself, either by
the compassion felt for their suffering, or by the
fear, if patiently submitted to, of alienating the
affections of his people. It is more particularly
useful between contending armies. Honour is
the principal sanction of the laws of war, but
the power of making reprizals is a very necessary
coadjutor. In these cases, what humanity dic
tates, is, that the sufferings inflicted on the
innocent should be the least possible, consistent
with the production of the desired effect, that they
should be remissible, and that the utmost degree
of publicity should be given to them, either by
public declarations or in any other more effectual
manner.
One word more, and I have done. Instances
have not been wanting in history, when an innocent
B.IV. PROPER SEAT OF PUNISHMENT. 293
person has offered to satiate the resentment of
the person injured, and his self-devotion has been
received in expiation. What satisfaction did the
offended person reap from this sacrifice ? the
degradation and shame belonging to it. The
glory of the sufferer was the disgrace of the
Judge.
It may be asked. Is it possible to find any
case in which one person may, with propriety,
be allowed spontaneously to subject himself to
the punishment designed for another a son for
his father a husband for his wife a friend for
his friend. Such cases might perhaps be ima
gined, but it is useless to enter upon the conside
ration of such deviations from the ordinary course
of things.
SECT. IV. TRANSITIVE PUNISHMENT.
It has already been observed, that it is the
nature of all punishments, to affect not only those
that are the immediate objects of them, but also
those that are connected with the offender, in the
way of sympathy, and their participation in his
suffering is unavoidable. With these we have
nothing to do. What we have to do with are
those that the legislator by an express provision
of the law inflicts upon persons connected with
the delinquent punishments, the existence of
which depends entirely upon the legislator, and
which, as he has created, he can abrogate them.
Thus under the English law, with respect to
property of a particular description, the innocent
grandson, by the delinquency of his father, is
made to lose the chance he had of succeeding
to his grandfather, because no title can be deduced
through the corrupt blood of the father : this is
294 B.IV. PROPER SEAT OF PUNISHMENT.
what, by English lawyers, is called corruption of
blood.*
The strength of the argument lies in the
metaphor : this cabalistic expression serves as an
* As the subject is involved in a good deal of obscurity,
it may be necessary, in order that the expediency of this mode
of punishment may be understood, to state the nature of it a
little more explicitly.
By a rule of positive law, founded on the most obvious dictate
of utility, so obvious as to have been received with little
variation over the whole world, a man is permitted to succeed
in case of death to the property undisposed of by his next
relation.
This general rule is, with a variety of caprice, with which the
conceptions and expectations of the people can never keep
pace, differently narrowed and modified by the different laws of
various States. With us it is not in every instance that a
man is permitted to succeed to his relation. And the misery
produced by the unintelligible exceptions to the general pro
vision of the law, is in all cases, in proportion to the strength
of the expectation that is thus disappointed.
Forfeiture is more penal in its consequences than escheat.
By both forfeiture and escheat, an individual and his descen
dants are made to lose their chance of coming to the estate of
him, to whom they stood as next immediate descendants. But
corruption of blood goes further. By corruption of blood, the
party in question, and his descendants, are made to lose the
chance they had of succeeding either to a remote ancestor,
or to any collateral relation.
Offences by which the blood is said to be corrupted, are
stiled, how different soever in their nature, by one common
appellation, felonies. Between my brother and me, the com
mon ancestor is my father. If then, my father commit a felony,
the consequence is, I am prevented from succeeding not only to
whatever real property was my father s, but to whatever was my
brother s also, or that of any one descended from him : and this,
because in making out my title to the property in question, in
virtue of my relationship to my brother, I must reckon through
my father, although my father (such is the provision made by
the law) could not himself have taken it. Between my palernal
uncle and me, the common ancestor is my grandfather. If then
my father commit a felony, I lose the chance of succeeding, not
only to whatever real property was his, but also to whatever
B.IV. PROPER SEAT OF PUNISHMENT. 295
answer to all objections ; the justice of the
metaphor turns upon two suppositions.
The one is, that where a man has committed a
felony, (stolen a horse for instance) his blood
immediately undergoes a fermentation, and, (ac
cording to the system of physiology in use upon
this occasion) becomes really corrupt.
The other is, that when a man s blood is in this
state of putrescency, it becomes just and neces
sary to deprive his children not only of all real
property, of which he was in the enjoyment, but
of what might thereafter be derived through him.
The end of punishment, is to restrain a man
from delinquency. The question is, whether it
be an advantageous way of endeavouring at this,
to punish in any, and what cases, in any, and
what mode, to any, and what degree, his wife,
his children, or other descendants ; that is, with
a direct intention to make them sufferers.
If a man can be prevented from running into
delinquency, by means of punishment hung over
the heads of persons thus connected with him, it
is not, as in the cases above-mentioned, because
it is expected that they should have it in their
power to restrain him, by any coercion, physical
or mental, of their imposing. It is not that they
are likely to have it in their power, by anything
they can do. In the case of the wife, it is not very
likely : in the case of children already born, it is
still less likely : in the case of children not yet
born, it is impossible. What is expected to work
upon him, is the image of what they may be
was either my grandfather s or my uncle s. So also if my
grandfather commit a felony, I lose the chance of succeeding
not indeed to the property that was my father s, but however, to
whatever was either my grandfather s, or my uncle s, or any
descendant of my uncle s.
290 B.1V. PUOPER SEAT OF PUNISHMENT.
made to suffer. The punishment then upon them,
may be, and it is expected will be, without any
act of theirs, a punishment upon him. It will
produce in him a pain of sympathy.
First, we will consider the case of the wife,
where the punishment consists in being made to
lose what is already in specific prospect : viz.
The immoveable property in which she had her
dower.
It has been doubted whether it were possible
for a man to love another better than himself; that
is to be affected, not merely momentarily, but for
a length of time together, more by the pains
and pleasures of another than by his own. Some
have denied the possibility, all will admit that
it is extremely rare. Suppose it then to happen
in one case out of five hundred, and to do all
possible honour to the marriage state, let us sup
pose that this person whom a man loves better
than he does himself, is never any other than
his wife. But it is not so many as half the
number of men of an age to commit crimes, that
have wives. Nor is there above one in a hundred
who has lands of which a wife is endowed.
Upon this calculation, there is not above one man
in 50,000 of those that are liable to this mode of
punishment, on whom it would operate in as great
a degree as if laid on himself. In the remaining
49,999 instances, in order to produce the same
effect, more punishment must be laid upon the
innocent wife, than would need to be laid upon
the offending husband. Let us suppose, for the
purpose of the argument, that every man loves his
wife half as much as he does himself, on this sup
position, ten degrees or grains (or by what other
name soever it shall be thought proper to call
so many aliquot parts of punishment, must be
B.IV. PROPER SEAT OK PUNISHMENT. 297
laid upon the wife, in order to produce) the effect
of five grains laid directly upon the husband. On
this supposition, then in 49,999 cases out of
50,000, half the punishment that is laid on in this
way, is laid on in waste.*
What has been said with regard to the wife,
may, without any very considerable variation, be
applied to the children. In this latter case, how
ever, generally speaking, the affection is likely
to be more uniform and certain, and consequently
the contemplation of the suffering they may be
exposed to more certainly effacious, in restraining
the commission of the act intended to be guarded
against. The same method, making due allow
ance on this score, will therefore apply to this,
as to the preceding case.
What follows from this, therefore, is that till the
whole stock of direct punishment be exhausted
upon the offender himself, none ought in this way
to be attempted to be applied through the medium
of the innocent.
If there is any case in which forfeiture can be
employed with advantage, it would be that of
rebellion. Rebellion, not treason, for treason is a
name applied to a variety of offences that have
nothing in common but their name. And if it
were employed against the descendants of a rebel,
it should not be in the way of transitive punish
ment, nor in the way of punishment at all, but as
a measure of self-defence : of self-defence against
the mischief that might be expected, not from the
criminal who is no more, but from his dependants.
* It will not, it is hoped, be understood that any stress is
meant to be laid upon the particular number here employed :
the reader may put in numbers for himself: they are merely
given as a specimen of the manner in which such an enquiry
ought to be conducted.
298 B.IV. PROPER SEAT OF PUNISHMENT.
When the husband is engaged in rebellion, it is
probable that the affections of his wife* are enlisted
on the same side. Is it certain ? By no means.
But, however, it is probable. Is it probable that
so also are his children ? Is it certain ? By no
means. All rebellions, and particularly the last
Scotch rebellion, afford instances to the contrary.
But, however, it is probable. What then should
be done? Presume guilt, and make it require
an effort to exempt the party from the conse
quences ? No, but presume innocence, and make
it require an effort on the part of the Crown to
afflict him. Let the Crown be empowered imme
diately upon the attainder of a rebel, to seize into
its hands the possessions, real as well as personal,
of his wife, his children, and his other descendants
too ; with a power to -continue the seizure from
year to year upon special mention of each person,
in so many proclamations to be issued for that
purpose : and this too, property, under whatever
title it might be held, without suffering the law, as
it is now, to be turned into a dead letter, by expe
dients for giving to property such modification as
to render it unforfeitable. This would be a
remedy exactly analogous to the suspension of the
Habeas Corpus Act : putting the near kindred of a
convicted rebel upon the same footing, with respect
to their fortunes, which by that Act all men with
out distinction are put upon, with respect to their
liberties. This would be a certain, not a casual
safeguard, giving strength to the Government,
without bringing guiltless oppression upon the
people.
Those who lAve read Lord Clarendon s History, will
remember what grievous complaints that historian, in speaking
of the Duke of Albemarle, makes of the Duke s Presbyterian
wife.
15. IV. PROPER SEAT OF PUNISHMENT. 299
State crimes, with treason at the head of them,
may issue from various sources : from indigence,
from resentment, from ambition ; but in many
instances they are crimes of conscience. By
lawyers in this country, it is spoken of as one of
those almost incredible abominations, at which
nature shudders : like murder, not to be committed
by any man, but one who has sold himself to the
devil. They see not, or would not seem to see,
that the character of rebel or of loyalist, turns
upon the accidents of war : that men may differ
with the most perfect integrity, and with the
purest intentions about the title to the Crov/n, or
to such a branch of public power, as well as about
a town, or a piece of land ; and that it is only
party prejudice that makes rebellion and wicked
ness synonymous. But in those difficult and
distracted times, when right and duty are liable to
be confounded, the Hydes, the Falklands, the
Seldons, and the Hampdens divide themselves :
who can read the recesses of their hearts ; men
enlist from pure motives in the worse, and from
sordid in the better cause. Now, when conscience
is the motive, it is always probable that the same
conscience which governs the principal may
govern the dependants, or in other words, the
same that governs the husband and the father, may
govern the wife whom he cherishes and the chil
dren whom he educates. Rebellion then, is a
family offence.
That treason, however, which consists in secretly
conspiring in a united nation with a foreign enemy,
stands upon a very different footing. This is
always among offences against conscience. It
can scarcely arise even from personal resentment :
it arises from the most sordid of all sources lucre.
Every one acknowledges the baseness of such a
crime; and a man could scarcely be more detested
300 E.IV. PROPER SEAT OF PUNISHMENT.
by the public at large, than he would be if dis
covered by his own family. This is no more a
family offence than robbery or murder are family
offences. In this kind of offence, therefore, there
is not the same reason for casting the family upon
the mercy of the crown. Whatever the family
suffers is endured without reason and in waste.
SECT. V. DISADVANTAGES OF THIS MODE OF
PUNISHMEMT.
From what has been said, except in the above
case of rebellion, it will be pretty apparent that
in point of certainty this mode of punishment
is eminently deficient. In by far the greater
number of cases in which the offence has been
committed, this punishment cannot take place
for want of a subject on which to operate. A
man that has no wife or children, cannot be
punished in the persons of his wife and children.
Couple this circumstance with the cases in which
the offender will have nothing to forfeit, and it
will be found that the punishment will be inope
rative in nine hundred and ninety-nine cases out
of a thousand. Now a punishment that is good
in one case only out of a thousand is good for
nothing. Some other punishment then must be
adopted in its room. This punishment must
be as much as is enough in those cases, otherwise
there had as good be none. Now then as that
punishment serves in all other cases, why may
it not in this one? If it is enough in those cases,
it is, when added to the particular punishment in
question, more than enough in this one. Now
then, if it is more than enough, it is misery in
waste. It is, therefore, for the most part useless,
and whenever it is not useless, it is mischievous.
2. After this it is saying little to observe, that
B.IV. PROPER SEAT OF PUNISHMENT. 301
in respect of equability it is not less defective,
because, to a man who has no thought about
his wife or children, or has taken a dislike to
them, it is at least matter of indifference to him
whatever may befall them ; in this therefore the
punishment of them is so much clear waste.
3. In respect of Frugality it is in a very remark
able degree defective, the quantity of evil that it
is susceptible of producing is altogether bound
less. Consider the chain of domestic connection,
and calculate the number of descendants that
a man may have ; the suffering communicates
from one to another, and destroys the peace of the
most extensive families. To produce a direct
punishment, which may be estimated as unity,
indirect and mis-seated punishment must be cre
ated equal to ten, twenty, thirty, a hundred, or
perhaps, a thousand, &c.
4. It is no less deficient in point of exemplarity.
What the delinquent himself suffers is known
always by the sentence, it is in many cases
visible in the execution. The woman or the
child who is made to suffer for his crime, lan
guishes in secret and unavailing misery.
5. The punishment thus withdrawn from its
natural course, possesses not so much as the
advantage of popularity ; it is directly adverse
to the general sentiments of sympathy and antipa
thy. When the delinquent himself is punished,
the public vengeance is satiated, and receives
no satisfaction from any ulterior punishment, if
he is pursued beyond the tomb, and his innocent
family are offered up as victims, feelings of pity
are excited ; an indistinct feeling accuses the
laws of injustice, humanity declares itself against
them, and on all sides the respect for the laws is
weakened.
302 B.TV. PROPER SEAT OF PUNISHMENT.
SECT. IV. COLLECTIVE PUNISHMENTS.
I now come to another case, of which examples
are to be met with in the penal dispensations
of most countries that of collective punishment,
or the punishment of large bodies of men for
the delinquencies of a part of them. Under the
English law one instance is the punishment
inflicted on a whole corporation for the delin
quency of some of its members.
When this mode of punishment is justifiable.,
it is only on the score of necessity. Now to
prove this necessity two matters of fact must
be made appear; one is, that the guilty could
not be punished without the innocent : the other
is, that the suffering of the innocent, when added
to that of the guilty, will not, in the whole,
compose a mass of evil more than equivalent to
the benefit of the punishment.
Of these two matters of fact the first is easy
enough to be judged of; the latter must be left to
vague conjecture.
Of the administering this mode of punishment
there are some remarkable instances both by
common law, and by statute. The above prin
ciples will enable us to form a judgment of the
propriety of those several proceedings.
By the common law it is settled that the
privileges of a municipal corporation may be
forfeited for the misconduct of the corporators :
those privileges which are indiscrimately bene
ficial to all the persons who are free of
the corporation, for the delinquency of the
majority of any general assembly of those who
form the governing part of it. The power,
however, of adjudging such a forfeiture has been
B.IV. PROPER SEAT OF PUNISHMENT. 303
very rarely exercised, and the insidious and uncon
stitutional use that was attempted to be made
of it in the reign of Charles II, has cast a stigma
on the general doctrine ; so that it is not likely
to be ever more carried into practice. Such a
mode of punishment is plainly unnecessary and
inexpedient. The particular delinquents in this
way may always be ascertained, and that much
more easily and infallibly than in the case of ordi
nary offences ; their acts being, in the very essence
of them, public and notorious.
Our own times have exhibited several instances
in which punishment, either in reality or to
appearance, has been inflicted on a body of men
for the misbehaviour of a part of it. I will men
tion them in their order.
The first I shall mention is the case of the city
of Edinburgh, which happened in 173G. A very
numerous mob rose up in arms, seized the City
Guard, possessed themselves of the city gates,
and in defiance of the public authorities, put
to death a Captain Porteous, who lay under sen
tence of death, but had been reprieved. This
outrage occasioned an Act of Parliament to be
made.* By this Act a particular punishment
is inflicted upon the Lord Provost of the town,
for the particular neglect he is there charged
with : but besides this, a fine is laid on the cor
poration.
Of these punishments, that on the Provost,
we may observe, was in propriam persona m. The
fine on the corporation was a collective punish
ment, falling on as many persons as might find
themselves in any shape prejudiced by such fine.
Now the ground of applying this latter punish -
* lOGeo. II, c. 34.
304 B.IV. PROPER SEAT OF PUNISHMENT.
merit was not the absolute impracticability of
applying any punishment of the proper kind at
all. The Provost, as we see, was punished for
the negative offence of his neglect. And it
appears from another Act, which immediately
follows that in question, that a number of persons
were actually fugitives for the principal offence.
By the second Act these fugitives, in case of their
not surrendering within such a time, were to suffer
death, as were also those who should conceal
them. If then they never surrendered, they
remained fugitives, and were punished by banish
ment. If they surrendered, the presumption was
that they would be punished with the ordinary
punishment for the offence of which they were
guilty; this punishment, however, was not thought
sufficient for so enormous and dangerous an out
rage. As a supplement, operating in the way
of ex post facto law, this fine upon the corporation
was thought of. Now from such a punishment,
considered in itself, it is not probable that any
great effects could have been expected. It served,
however, to point the moral sanction against the
offence, and to help express, as in the words of
the Act, the " highest detestation and abhorrence"
of the criminal transaction.
In this case, as in that of rebellion, what may be
presumed even though the fact be not capable of
being established by evidence, is that there was a
complicity of affection, in virtue of which all the
inhabitants joined in endeavouring to protect the
offenders from the visitation of the law.
The next statute I shall take notice of in this
view is that for punishment of the corruption that
prevailed in the borough of New Skwxham.* A
* 11 Gco. Ill, c. 55.
B.IV. PROPER SEAT OF PUNISHMENT. 305
society calling itself the Christian Society, consist
ing of a large majority of the electors, had formed
itself, and subsisted for several years, for the pur
pose of selling the seats in Parliament for that
borough. On this account all who were members
of that society, were, by name, with great pro
priety, laid under a perpetual incapacitation. So
much, considered as a punishment, was a punish
ment hi propria personas. But the proper light
in which this measure ought to be considered
seems not to have been that of a punishment;
for in this light it seems hardly to be justified.
If it was a punishment, it was an e.r post facto
punishment, which was the less necessary as there
was already a punishment of the same kind pro
vided by the law : to wit, incapacitation, though
it be but temporary. But in truth, by much the
greatest part of the efficacy which it was expected
to have, was built on another ground : on it, as a
measure of anticipation : calculated to prevent an
evil which, but for such remedy, it was visibly
in the power, and as visibly in the intention, of
the parties thus disabled to introduce : viz. a
succession of representatives brought in in this
corrupt and unconstitutional way. It was there
fore not punishment for an evil past and gone, but
self-defence against an evil still impending. Now
the expence at which this benefit was purchased
for the community, could not well be less in any
instance than in this. The franchise of elec
torship, like any other branch of public power,
is not an usufructuary possession, but a trust :
an article of property which a man holds not
for his own benefit alone, but for that of the whole
community, of which he is himself but one.
Those who are in possession of it find means,
it is true, of deriving from it a personal benefit
306 B.IV. PROPER SEAT OF PUNISHMENT.
to themselves : but this is in direct repugnance to
the interest of the community and the end of
the institution ; so that, with reference to the
particular interest of the possessor, it may be
truly said, it is of the less value to him the more
conscientiously he discharges it. In truth, I see
not why, with respect to the possessor himself,
it ought to be looked upon as anything.
But the legislature went farther : besides
incapacitating the electors there named, who were
a majority, but not the whole, it went on and
communicated the right of election to all the forty-
shilling freeholders within a large district, of which
the borough in question was but a part. In
doing this they lessened the right of the innocent
burghers who remained.* And as to such part
of it, the measure, if it be to be considered as a
measure of punishment, must be allowed to have
been a punishment in alienas personas. Considered
in this light, it was not expedient, since it was
not necessary, for the innocent not only could be
but actually were distinguished from the guilty.
But in whatever light it may appear, considered
with reference to the particular persons subjected
to that trifling disadvantage, as a measure of
reformation it cannot be too highly praised. It
stands as the pattern and ground-work of a great
plan of constitutional improvement. f
* The punishment, if any, that was thus inflicted on the
innocent burghers, consisted in the pain of apprehension that
among the new electors would be found some, and perhaps
a majority of the whole, who would make an improper use of
the power of which they were made partakers.
f One thing let me be permitted to mention, which I think
would have been an improvement, and would have done all that
could be wanting to reconcile the measure to the strict princi
ples of ordinary justice. A part of the electors stood in a
meritorious light ; they had either the merit to withstand, or
. IV. PROPER SEAT OF PUNISHMENT. 307
SECT. VII. RANDOM PUNISHMENT.
Random punishment is the epithet that may be
applied to mis-seated punishment, in those cases in
which, without previous design, it has fallen upon
the innocent by some caprice of the imagination
taken up at the moment, when the occasion and
the pretence has come for the infliction of it : not so
much as even the wretched sort of pretence which
the good fortune to escape, the temptation to which their
co-electors yielded. Yet by the statute in question, the condi
tion of these meritorious part so far from being bettered was
rendered worse than it was before. There was a method by
which this might, I think, have been prevented, without the
least prejudice to the reforming part of the measure, and at the
same time a signal encouragement held out to conscientious
electors, and this without any prejudice to the reforming part
of the measure. The expedient was a simple one. It was but
the adding to the number of votes which each of the sound
voters should have under the new constitution, in such manner
that the weight of each man s suffrage should bear the same
proportion to that of the rest under the new constitution as it
had done under the old one. The benefit thus reserved would
in such case have told for more than it was in reality. The
men by being only not punished, would have seemed to be
rewarded. They certainly would have been rewarded in point
of honour. If a religious attention were constantly to be paid
to private subsisting interests, which being temporary may
always be provided for at a small expense, reformation would
be delivered from much of that opposition which it is at present
apt to meet with. One may say to reformers, serve the whole,
but forget not that each member is a part of it.
Strictly speaking, it is true that the electors have no reason to
complain, except as above, upon the occasion of an extension
of the elective franchise. The dilemma is clear: if you do not
mean to discharge it conscientiously, you ought not to be
trusted with it. If you do, it is of no benefit to you, and you
can have no ground to complain of its being taken from you
for the benefit of the State.
308 B.1V. PROPER SEAT OF PUNISHMENT.
had place in the case of extravasated punishment
having place in the present case.
For the illustration of this modification of mis-
seated punishment we may again refer to the law
of forfeiture, to that of deodands, and that of the
exclusion put upon testimony, when for the
punishment of an inconjecturable number of inno
cent persons, through the sides of one delinquent,
and by wounds of every imaginable breadth, and
depth, and nature, the fact of his delinquency
forms the pretence.
When a man who has a freehold interest in
any lands commits an offence, part of the punish
ment for which is the forfeiture of such interest, and
then sells, or mortgages, or in any other manner
disposes of that interest, and is afterwards
attainted for the offence, the law takes it back
from those in whose favour it was disposed of,
without deigning to enquire whether they knew
anything of his having committed it. An indivi
dual commits a secret murder, and sells you an
estate : twenty years after he is discovered,
prosecuted, attainted. The King, that is, some
body who assumes his name, seizes the estate.
If you have devised it, charged it, sold it, if,
besides your s, it has passed through fifty other
hands, it makes no difference. If it was your wife
who had been murdered, it would make no
difference. You would lose your wife by the
crime and your fortune by the punishment.
It might be supposed that the law looked
upon itself as driven to this expedient by the
apprehension of fraudulent conveyances ; but this
is not the case. In the case of moveable and
other personal property, it recognizes the practi
cability of distinguishing fraudulent conveyances
from fair. It establishes the latter : it vacates
B.1V. PROPER SEAT OF PUNISHMENT. 309
only the former. Yet, it is obvious that im move-
able property is much less obnoxious to such a
fraud than moveable.
With all this the author of the Commentaries is
perfectly well satisfied. " This may be hard,"
he says, " upon such as have unwarily engaged
with the offender." But what of that? " the
cruelty and reproach" continues he, "must lie
on the part, not of the law, but of the criminal,
who has thus knowingly and dishonestly involved
others in his own calamities." To one who can
reason in this manner, nothing that is established
can come amiss. So long as there is the least
particle of guilt not only in him who is punished
but in any one else, no law by which punishment
is inflicted can be cruel, no law deserving of
reproach.
Another instance of random punishment is that
of Deodands.
You are a farmer. You employ a waggon.
You send your son to drive it: he slips down, is
run over and killed. The King, or somebody in
his name, is to have your waggon. This is the
consolation which the law of England gives you
for your loss.
This idea might be improved upon. Let it be a
law that when a man happens to break his neck,
the people of his parish shall draw lots who shall
be hanged to keep him company. The punish
ment would be greater, but the reason for punish
ment would be the same.
If instead of a waggon it had been a ship that
was moving to your son s death, it would make no
difference : though the ship were laden with the
treasure of the Indies it would make no difference,
the ship and its lading would be the King s.
The source from whence this institution flowed
310 B.IV. PROPER SEAT OF PUXISHMENT.
is pretty generally known : but it is not perhaps
so generally observed that the institution is not a
just consequence, even from the ideas then
received. It was established, it is not easy to say
how early, but however in the days of Catholi
cism. In those days, as soon as a man s soul had
left its body, it used to go to a place called Pur
gatory, there to be broiled for 20,000 years. Now
in this life some souls love music, others not.
But in that post, life which was then to come, all
souls were fond of it alike. Luther himself, who
ought to know, is positive of it.* Not that all
music was to their taste. It was only a particular
kind of music, such as priests know only how to
sing. But it was not reasonable that priests
should sing unless they were paid for it ; for the
labourer is worthy of his hire. Now when a man
died thus suddenly, it was not probable that he
should have made any provision by his will for
paying them. Therefore it was necessary that
somebody else should pay them. So far was in
order. But why resort to any other fund than the
man s own property? Was he the poorer for
having died a violent death, than if he had died a
natural one? or for dying by the effect of a thing
in motion, than if he had died by a fall from a thing
at rest? And if, after all, he had nothing to pay
for himself, could not the parish, or the hundred,
or the next abbey have paid for him?
I would not swear but the sages who invented
this notable institution might think to do a spite
to the thing, the waggon, the ship, or whatever it
was, by making it forfeited ; as the Athenians
exterminated a stone that struck a man and killed
him, that is, carried it out of their country and
* See Sir J. Hawkins s History of Music.
B.IV. PROPER SEAT OF PUNISHMENT. 311
threw it into another. Many a public institution,
which the lawyer admires with humble deference,
has had no better ground.
The next instance of random punishment which
I would give, consists in the exclusion put upon
testimony.
I could wish to give the reader a precise list of
the offences to which this punishment is annexed,
but this I find to be impossible. Every principle
delivered on this subject teems with contradiction.
The emuneration which is sometimes made in
cludes nearly every principal crime, comprehend
ing treason, perjury, forgery, and such like crimes,
theft, all crimes considered infamous, and felony.
As to felony, this is spoken of as if it were a par
ticular species of crime : the case is, that felony
is a collection of crimes as heterogenous as can
be conceived, and which have nothing in common
between them but the accidental circumstance
of being punished with the same punishment.
Crimes of mere resentment, or malicious mischief,
are by scores of statutes made felonies. Homicide
intentional, in the heat of passion ; or unintentional,
by an unlucky blow, is felony. Rape is felony.
Crimes of lewdness are felonies. What is not
felony? The evidence of persons excommunicated
is not received, the reason annexed by some has
been, that these individuals not being under the
influence of religion cannot be believed on their
oath. By others it has been generally said, that
those who converse with excommunicated persons
are excommunicated with them, and consequently
they cannot be admitted to receive any questions
from a Court of Justice. Of this nature are the
reasons frequently given for existing laws in the
books of English jurisprudence.
Without longer stopping, therefore, to ascertain
312 B.IV. PROPER SEAT OF PUNISHMENT.
in what cases testimony is refused, let us proceed
to examine if this is a proper punishment, that is
to say, if there is any case in which because a man
has committed a crime his testimony ought to be
rejected.
The only reason there can be for rejecting a
witness is this, that it appears more probable that
after every expedient that can be put in practice
to get trie truth of him, the account he gives of
the matter would rather mislead those who are to
judge than set them right. I say mislead the
judges; I do not say be a false one: for whether
it be true or not, is what to the purposes of justice
is a matter of indifference. The point is for them
to (be enabled to) form such a notion of the fact in
dispute as shall prove a true one; by what means
they come at it is no matter. He would commit
perjury indeed, but that is quite another evil, and
an evil for which there is another and more proper
remedy than that of prematurely repelling his
evidence. This want of veracity, therefore, is no
objection to him, unless he has the faculty of
maintaining to the last such a degree of consistency
and plausibility as shall enable him to conceal it.
As to want of veracity it should be considered
that the greatest liar in the universe rarely swerves
from truth (I mean what to him seems truth) in
one instance out of a hundred. The natural bent
of all mankind is to speak truth ; it requires the
force of some particular interest, real or imaginary,
to overbalance that propensity. Some men, it is
true, are made to deviate from it by very slender
motives, but nobody tells a lie absolutely without
a motive.
Now then, do but suppose him absolutely with
out any interest to give a false account, and the
most abandoned criminal that ever was upon the
B.IV. PROPER SEAT OF PUNISHMENT. 313
earth might be trusted to as safely as the man of
the most consummate virtue. Where then lies
the difference? In this, that the profligate man
may easily be made to fancy he has such an
interest in telling falsehood as shall preponderate
over the interest he fancies he has in speaking
truth; the easier, the more profligate he is: the
man of virtue, not without difficulty; the more
difficulty, the more he is confirmed in virtue.
Now a motive to speak truth, in cases where
he is called upon by law to give his testimony, is
what every man has, and unless he be insane
must conceive himself to have; he has it from the
political sanction, in the penalties which the law
denounces against falsehood in such cases: he has
it from the moral sanction, in the infamy annexed
by men in general to such a conduct: he has it
from the religious sanction, unless he be an atheist,
and except in as far as dispensations or absolutions
may intervene to take it off.
The interest which a man may have on
the other hand to speak falsehood in such a case,
may be distinguished into a natural interest, and
an artificial one. What I mean by a natural
interest need not be explained. I call that an
artificial interest which he may derive in the way
of reward, by the express act of him who has
some natural interest. If you are at law for an
estate, you have a natural interest in my telling
any story, true or false, that may serve, to establish
your title. If you give me a reward for telling
such a story, I have an artificial one, which is
raised up in me by you.
Now whether a man has a natural interest or no
in the fate of a contest, is in general pretty easy
to be known; it is a question of itself: and if
determined in the affirmative, the tendency of the
314 B.IV. PROPER SEAT OF PUNISHMENT.
law is, to reject a man as a witness, upon that
distinct ground, and without regard to his probity
or improbity.
The question is here concerning an artificial
interest, the existence, or non-existence of which,
does not so readily lie within proof; but the lights
that are to be had, are to be drawn from such cir
cumstances as may appear to affect the description
of a man s general character. Thus much only
is certain, that in proportion as a man is more or
less confirmed in virtue, the less or the more likely
is any artificial motive which may be presented to
him, to preponderate over the motives he has to
speak truth, and be effective, so as to determine
him to speak falsehood.
It is here proper to be upon our guard against a
vulgar error. Men of narrow experience, of hasty
judgment, and of small reflection, in a word, the
bulk of mankind, have in a manner but two classes
in which to stow a man, in respect of merit :
they know but of two characters, the good man
and the bad man. If then they happen to view a
man s conduct, in any instance, in a favourable
light, up he goes among the good men ; if in an
unfavourable, down he goes among the bad men,
and they fix a great gulph between the two. If
their opinion, with respect to either, comes to
change, as they have no intermediate stages, he is
removed from his station, with the same violence
as he was at first placed in it. But men of obser
vation and cool reflection, who have had patience
and sagacity to make a narrow search into human
nature, learn to correct the errors of this indolent
and hasty system ; they know that in the scale of
merit, men s characters rise one above the other,
by infinite and imperceptible degrees ; and, at the
same time, that the highest is distant from the
B.IV. PROPER SEAT OF PUNISHMENT. 315
lowest, by a much less space than is commonly
imagined.
Those who admit the truth of these observations
will see how precarious and ill-contrived a means
the law takes to come at truth, by giving into the
error above noticed: by making one class of men,
which it will hear, and another of men, whom it
will not suffer to be heard in any case, or on any
account. In a word, (for I own that the argument
comes to this) that while it enjoins any class
of persons to be excluded, at all events, to avoid
a small degree of possible inconvenience, it
embraces a great degree of certain inconvenience.
It is manifest, that the smaller the number of
persons is whom it guards against, in proportion
to those whom it remains still exposed to danger,
the less is the advantage gained by it. Whom
then does it guard against? a few hundreds,
perhaps, in a nation. And from whom does it
remain exposed to danger ? all the rest of the
nation. .For who is it from whom it does not stand
exposed, in any case, to a danger of this kind, I
declare is more than I can imagine. If there be
any man now living that can lay his hand upon his
heart, and solemnly declare, that in no instance,
trivial or important, has he ever departed from the
rigid line of truth, upon the prospect of advan
tage, he has either more hypocrisy than I would
wish to impute to any man, or more virtue than I
can persuade myself to exist in any man. The
only person about whom I can be sure, and who
yet would not willingly yield the palm of integrity
to any one that lives, nor barter any atom of it
for any other honour the world has to bestow, is
far, I know, from the thoughts of making any such
pretensions.
There are cases in which the best man alive
316 B.IV. PROPER SEAT OF PUNISHMENT.
could scarcely be credited without danger : there
are cases in abundance, in which the worst man
alive might be believed with safety. Such are all
those, where the circumstance of the case afford
the witness no natural motive to speak falsely :
and the circumstances of the parties are such as
can afford him no artificial one. I am, for instance,
as bad a man as, for the supposition s sake, you
would choose to have me. I happen to see one
man beating another, who afterwards seeks his
remedy at law against the oppressor, and calls me
as a witness, and the only witness. Now, it has
happened, that I have been convicted of perjury,
over and over again, as many times as you please :
I would swear my father s life away for a penny.
But the parties are, both of them, miserably poor:
they neither of them have a penny to tempt me
with. What then is there to induce me to give a
false account of the matter ? nothing. What then
is the danger of admitting me ? none at all.
What the consequence of rejecting me ? the
triumph of oppression. Now, in a case like this,
there is nothing singular nor improbable ; a thou
sand such might a man figure to himself with ease.
Having proceeded thus far, I will venture to
advance this position, that a man s testimony ought
not to be rejected at all events, even for the
crime of perjury : if not for perjury, it will follow,
a fortiori, not for any other crime. I will just offer
a farther consideration or two, in support of this
opinion ; I will then give a short sketch of the
evil consequences that result from such an abso
lute rejection ; I will thirdly offer an expedient,
which, I think, would answer every good purpose
of it; and lastly, I will state the different degrees
of reason there may be, for extending the incapa
city to the different crimes that may be proposed.
B.IV. PROPER SEAT OF PUNISHMENT. 317
Now then, let the crime of which the witness
has been convicted, be that of perjury. He has,
however, no natural interest to speak false ; if he
has, that forms another ground of disability, which
is not here in question. If then, he has an artifi
cial interest, it is the party that must give it him.
But in this case, the party must be a suborner :
unless then, he stand already convicted of subor
nation on a former occasion, there can be no ground
for repelling the perjured witness, without
peremptorily attributing to another man, whose
character stands unimpeached, a crime of a simi
lar complexion : a supposition, which no rule,
either of law or reason, seems to warrant.
I cannot help thinking, that these rules of
peremptory incompetency would never have been
laid down, had those, who first started them, gone
deliberately and circumspectly to work, and care
fully examined the consequences on both sides of
the question. The evil consequences of the rule,
they seemed scarcely to have cast their eyes on.
They seem to have gone to work, as if they had
witnesses enough in every case to pick and choose
out of; on which supposition, certainly, they
would do well to discard the worst, to pick out
and retain none but the best, and such as should
be proof against all exception. All this was
mighty well, provided there was no danger on the
other side. But the danger on the other side is
terrible. It is a truth, however, which I can
scarce help looking upon as very obvious, and
certainly it is an important one, that to mark any
man out as disabled from witnessing at all events,
is to grant all men a license to do to him and
before him all manner of mischief whatsoever.
Now, as to what may be done to him, that indeed
may be taken as so much punishment of the pro-
318 B.IV. PROPER SEAT OF PUNISHMENT.
per kind, though it would be a strange loose and
inconsiderate method of laying a man under pro
scription.*
But as to mischief that maybe done to others in
his presence, or which, in any other way, others
may suffer for want of his evidence, the case of
Pendoch and Mackendar f may serve as an ex
ample. By the statute, which is called the Statute,
of Frauds and Perjuries, three witnesses are neces
sary to a will of land. In this case, the will had
three witnesses, as it ought to have. Two stood
unimpeached ; but it was found out, that the other,
once upon a time, had been convicted of petty
larceny, and been whipt. This was before the
attestation, how long, it does not appear. The
suit was commenced five years afterwards. This
man being deemed a bad witness, (and as such,
not to be heard) there wanted the requisite num
ber, and the man, in whose favour the will had
been made, lost the estate. One may imagine the
shock to a person, who thought he had all the
security for his estate which the law could give
him ; one may imagine the surprise and indignation
the testator, were he to arise out of his grave,
must feel, at seeing his disposition vacated, by an
incident which common prudence could never have
prompted him to guard against, unless, by looking
in a man s face, he could have told, that once in
his life he had been guilty of a trifling breach of
honesty, and been whipt for it.
The limits of this design will not permit me to
expatiate upon this subject any further, by sug
gesting cases of like mischief that are liable to
* It would be worse, in some respects, than forfeiture of
reputation.
f 2. Wils. 18.
B.IV. PROPER SEAT OF PUNISHMENT. 319
happen, or collecting such as are known actually
to have happened. This general sketch of them
being given, the intelligent reader will readily
excuse me from entering into the detail.
Because a woman has been guilty of perjury,
or any other offence which has rendered her tes
timony inadmissible, it is just that she should be
punished ; but is it just, is it proper, that she
should be delivered over to the lust of whatever
man to whom her beauty may become an object
of desire ? If the law were known to be, in this
respect, as it is said to be, the nation would become
a scene of lust, cruelty, and rapine ; but it hap
pens here, as it will sometimes happen in other
instances, one mischief operates as a palliative to
another: the extreme absurdity of the law is veiled
by men s utter ignorance of its contents.
Let us turn back and look on the other side.
What then would be the mischief of admitting the
testimony of a man thus stigmatized ? I see none :
none at least that can for a moment stand in com
petition with the mischief on the other side.
"But the person so stigmatized does not deserve
to be believed !" Does he not ? why am I to think
so ? because you say so ? No ; but because men
in general will say so too ! And will they then ?
Yes, surely will they. I do believe it, and there
fore it is I say there is no danger. Let him be
known for what he is, and a Jury will be under
the strongest bias not to believe him. Their pre
judice will bear strong against him ; nor will any
thing less than the strongest degree of probability,
and the most perfect consistency in the whole
narration, be sufficient to induce them to believe
it. I see not what it is that should justify the
extreme distrust which Judges have shown of
Juries in establishing this rule : especially, as in
320 B.IV. PROPER SEAT OF PUNISHMENT.
case of a conviction of an innocent person, which
is the greatest danger the case is open to, it is so
entirely in the power of the Judge to save the
convict. The general prejudice of mankind, as
we have before observed, leads them to exa^gera-
OO
tion in the judgment they pronounce of the gene
ral tenor of a man s character, from a single action ;
in particular, to spread the stain that a single act
of delinquency brings upon a man s character,
farther than according to reason, it ought to go.
It is from having been the dupes, as I take it, of
this prejudice, that even Judges, the ancient
Judges, who first laid down the law upon this
point, first broached this rule. It may always be
expected to work, at least as strongly as it ought
to work, upon Juries taken from the body of the
people.
Were it then abolished, the conduct of Juries,
then you think, would nearly be the same as if it
subsisted ? I think it probable. What advantage
then would you gain by the abolition ? This great
one : the chance that a delinquent might have of
impunity in such a case, would no longer be visi
ble upon paper ; he would no longer see a formal
license given him, by the letter of the law, to com
mit all manner of wickedness in presence of an
object circumstanced like the party in question ;
if a guilty person were acquitted upon that ground,
it would appear as if, upon the whole, the story
was not credible, and that, in fact, no such crime
was committed as was charged, not that having
been committed, it was suffered to go unpunished.
This then is the advantage, and I think a more
conclusive one cannot well be required to justify
any institution.
All that prudence requires in such a case is,
that the character of the witness, that is to say,
B.IV. PROPER SEAT Of PUNISHMENT. 321
the offence of which he was formerly guilty, should
be known, that those who are called upon to
weigh his testimony, may be able to judge how
far he is to be believed.
Suppose the party has been guilty of perjury,
this crime most particularly affects his credibility.
There is a great difference to be observed in the
quality of the crime when committed in self-
defence, in one s own cause, and when committed
on the subornation of a stranger, and in an attack
upon the life of an innocent person ; such distinc
tions are most important, and readily offer them
selves to those who consult the dictates of common
sense, and do not surfer their eyes to be blinded by
the mist of technical jargon.
The time which has elapsed since the offence
was committed is a consideration of importance.
A man in his youth, at fourteen or fifteen years of
age, was led to take a false oath, and was con
victed he becomes reformed, during thirty or
forty years, he maintains an unimpeachable charac
ter. His reformation is of no consequence, the
record of his forgotten crime is dragged from the
dust with which it had been covered ; in accordance
with this rule, his testimony must be rejected ;
upon every principle of common sense and of
utility, it would have been equally admissible with
any other.
In the prosecution of criminals, the testimony of
those who have a manifest interest in their con
demnation, is not refused, whether that interest be
pecuniary, or arising from a desire of vengeance.
Such testimony is, however, received with distrust
and caution. This is well ; be equally distrust
ful of a witness, whose previous conduct has
rendered him suspected ; but hear him, and
examine whether the circumstances of his crime
Y
322 B.IV. PROPER SEAT OF PUNISHMENT.
are of a nature to affect his credibility on each
particular occasion .
SECT. VIII. CAUSE OF THE FREQUENCY OF
MIS-SEATED PUNISHMENT.
As to the cause of the abuse thus made of
punishment, it lies not very deep below the sur
face. It lies partly in the strength of the self-
regarding, and dissocial passions, partly in the
weakness of the intellectual faculties on the part of
legislators, and of Judges acting in the place of
legislators.
It lies more particularly in the strength of the
dissocial passions, and in that one of the false
principles, rivals to the principle of utility, viz. in
the principle of sympathy and antipathy, in the pro
duction of which the dissocial affections, influenced
and swollen to that pitch in which they assume
the name of passion, have so large a share.
Urged on by the dissocial passion of antipathy,
misguided by the principle of sympathy and anti
pathy, men in power have punished, because they
hated : taking as a sufficient warrant for the inflic
tion of the sufferings which they proposed to them
selves to inflict, the existence of that hatred, of which,
as towards the person in question, in consideration
of the act in question, the existence was demon
strated to them by their own feelings.
That which was the cause, became naturally the
measure of what was done : punishing, because of
his hate, it was, to the man with the strong hand,
matter of course to punish in proportion to his
hate.
A lot of punishment, in which so much suffering,
and no more, would fall upon the innocent, as con
sistently with the application of punishment to the
B.IV. PROPER SEAT OF PUNISHMENT. 323
guilty, was unavoidable, sufficed not for the gra
tification of his hate : of that satisfaction which
consists in his contemplation of another s suffer
ing 1 , he would have as much more as was to be had ;
and frequently there was scarce a price, so as it
was at the expense of others only that that price
was made up, and not any part at his expense
there was scarce a price at which he was not
content to purchase it.
RATIONALE OF PUNISHMENT.
BOOK V.
OF COMPLEX PUNISHMENTS.
CHAPTER I.
INCONVENIENCES OF COMPLEX PUNISHMENTS.
WE have before observed that a penal act is
not simple in its effects, does not produce one
single evil, that it produces many masses of evil
at once. A punishment, considered as an act,
may be simple, considered in its effects, complex.
A man is imprisoned, here is a simple punish
ment as respects the act on the part of the
Judge : but as respects the individual the evils
resulting from it may be very various, affecting in
different ways his fortune, his person, his reputa
tion and his condition in life.
A simple punishment is that which is produced
by a single act of punishment : a compound
punishment, is that which requires more than one
operation ; the punishment for an offence may in
clude imprisonment, a fine, a mark of infamy, &c. if
B.V. CH.I. COMPLEX PUNISHMENTS. 325
all these are announced by the law ; if each of
these punishments is expressed by a clear and
familiar term, the punishment, though compound
or complex, may be a good one.
Improper complex punishments are those of
which the integral parts are not known, those
which include evils that the law does not an
nounce, which are only expressed by obscure and
enigmatical names which do not exhibit their
penal nature in clear characters, and which
are only understood by lawyers ; of this kind
are transportation felony with and without
benefit of clergy preemunire outlawry excommu
nication incompetency as a witness, and many
others.
Everything which is uncertain, everything
which is obscure, offends against the first con
dition in framiug a good law.
The inconveniences attached to complex punish
ments when thus defined are very great, but they
may be explained in a few words the legislator
knows not what he does the subject knows not
what is meant by the punishment threatened.
It becomes impossible for the legislator to do
what is proper in each case, he therefore does
either too much or too little every obscure
expression veils from his eyes the nature of the
punishment or punishments he employs : he
strikes blindfolded, and scatters suffering at
hazard. The Jury and the Judges who witness
the inconveniences of the law in each particular
case, allow themselves to employ all possible
means to avoid them, they usurp the authority
of the legislator, and perjury becomes the habitual
palliative of his injustice or improvidence.
If the law is executed, what happens ? the
Judge in inflicting one useful punishment, is
326 B.V. CH.I. COMPLEX PUNISHMENTS.
obliged to inflict a multitude of useless punish
ments : punishments of which the offenders had
only an imperfect idea, which produce mischief in
pure waste, oftentimes the mischief spreads over
persons who are entire strangers to the offence,
and the consequences are such that the legislator
would have trembled had he foreseen them.
We have already spoken of incompetency as a
witness, we shall now direct our attention to the
other punishments above-named.
327
CHAPTER II.
OF TRANSPORTATION.
AMONG the advantages which the North Ameri
cans have derived from their independence, there
is one which cannot fail to strike every man
who has any feeling of national pride; it has
saved them from the humiliating obligation of
o o
receiving every year an importation of the refuse
of the British population, of serving as an outlet
for the prisons of the mother country, whereby
the morals of their rising people were exposed to
injury, by a mixture with all possible kinds of
depravity. North America, after having been
exposed to this scourge for upwards of a century,
no longer serves as a receptacle for these living
nuisances; but can any limits be assigned to
the moral effects that may have been produced
by this early innoculation of vice?
I shall have occasion again to recur to this
important topic, when in speaking of the Colony
at New South Wales, and of the population now
forming there. I shall point out the inconve
niences which result from sending thither these
o
periodical harvests of malefactors.
The present object is to show that the system
of transportion, as now managed, is essentially
different from what it was under the old system,
and that with the change of scene, the punish
ment itself has in many respects been materially
altered; in some respects for the better, in many
others for the worse.
328 B.V. CH.II. OF TRANSPORTATION.
Under the old system of transportation to Ame
rica, power being given for that purpose by Par
liament, the convicts destined for transportation
were made over by the government to a con
tractor, who, for the profit to be made by selling
their services for the penal term to a master in
America, engaged to convey them to the scene of
banishment. To banishment, the banishment
prescribed by law, was thus added in all cases in
which the individuals were not able to purchase
their liberty, the ulterior and perfectly distinct
punishment of bondage. But wherever it hap
pened that through the medium of a friend, or
otherwise, the convict could bid more for himself
than would be given for his services by a stranger,
he was set at liberty in the first port at which he
arrived. The punishment was limited, as respected
him, to simple banishment, the individual was
therefore punished with bondage rather for his
poverty than for the crime he had committed.
Thus the most culpable, those who had com
mitted great crimes and who had contrived to
secure the profits of their crimes, were least
punished. The minor thieves, novices, and inex
perienced malefactors, who had not secured their
plunder, bore the double chain of banishment and
slavery.
Under the system of transportation to Botany
Bay, the whole expense is borne by the Govern
ment. The Governor of the Colony always
retains an authority over the convicts, and acts
as their goaler; he provides them with habitations,
employment, and food; they are placed under
his sole controul ; he may employ them either
in public or private works. Hard labour, with
some few exceptions, is the lot of all ; exemption
from it cannot be purchased by money. In
B.V. CH.II. OF TRANSPORTATION. 329
this respect the inequality above spoken of, has
been greatly corrected, and the punishment hav
ing been rendered more certain is consequently
more efficacious.
Transportation to America was attended with
another inconvenience, that country presented
too many facilities for the return of the convicts.
A great number of them availed themselves of
these opportunities, and returned to the mother
country to exercise their fatal talents with supe
rior skill. Some when their terms of banish
ment had expired, many before that period had
arrived. As to the latter, the facility of return
was one among the disadvantages attending
transportation to America; as to the others, in
the eyes at least of those who conceive that the
commission of one offence ought not to operate as
a forfeiture of all title to justice, this facility of
return could not fail to appear as an advantage.
On the other hand, the distance of Botany Bay
afforded a better security against illegal returns,
being situated at the antipodes of Britain, with
scarcely any existing commerce when first selected,
the return of any of the convict population was
an event hardly to be looked for: whilst however
a security thus effectual was provided against
the return of convicts whose terms had not
expired, an equally effectual barrier was raised
against the return of those whose terms had
expired, and thus, at one stroke, all inferior
degrees of this punishment were, in nearly all
cases, indiscriminately converted into the highest;
whether such an effect was intended or not it
is needless to enquire, but that such was the effect
is indisputable.
Transportation under the present system, is a
complex punishment, composed, first, of banish-
330 B.V. CH.Il. OF TRANSPORTATION.
merit, and, second, of hard labour, banishment,
a punishment eminently defective, particularly in
respect of its inequality: hard labour, a punish
ment in itself eminently salutary, but when
connected with banishment, and, afe in this case,
carried on under every possible disadvantage,
failing altogether to produce any beneficial effects.
In order to show how completely adverse the
system of transportation to New South Wales is
to the attainment of the several objects or ends of
penal justice, it will be necessary shortly to
recapitulate what those ends or objects are, and
then to show from the accounts which have been
furnished, respecting the state of the convict
population of that Colony, in what degree these
ends or objects have been respectively fulfilled.
The main object or end of penal justice is
example; prevention of similar offences, on the
part of individuals at large, by the influence
exerted by the punishment on the minds of
bystanders, from the apprehension of similar
suffering in case of similar delinquency; of this
property transportation is almost destitute. This
is its radical and incurable defect. The punish
ment is not seen by, it is hidden, abstracted
from, the eyes of those upon whom it is desirable
it should operate in the way of example. Punish
ments which are inflicted at the antipodes, in a
country of which so little is known, and with
which communication was so rare, could make
only a transcient impression upon the minds of
people in this country. " The people/ says
an author, who had deeply considered the effects
of imagination, " the mass of the people make no
distinction between an interval of a thousand
years and of a thousand miles." It has been
already said, but cannot be too often repeated
B.V. CII.II. OF TRANSPORTATION. 331
and enforced, that the utility and effect of
example is not determined by the amount of
suffering the delinquent is made to endure, but
by the amount of apparent suffering he undergoes.
It is that part of * his suffering which strikes the
eyes of beholders, and which fastens on their
imagination, which leaves an impression strong
enough to counteract the temptation to offend.
However deficient they may be in respect of
exemplarity, the sufferings inflicted on persons
condemned to this mode of punishment are not
the less substantial and severe; confinement for an
unlimited time in prisons or in the hulks, a
voyage of from six to eight months, itself a
state of constant sufferance from the crowded
state of the ships and the necessary restraint to
which convicts are subjected the dangers of
the sea exposure to contagious diseases which
are often attended with the most fatal conse
quences. Such are some of the concomitants of
the system of punishment in question, which
serves as the introduction to a state of banishment
and bondage in a distant region, in which the
means of subsistence have been extremely preca
rious, and where by delay in the arrival of a vessel
the whole colony has been repeatedly exposed to
all the horrors of famine. It is scarcely possible
to conceive a situation more deplorable than that
to which the convicts thus transported have been
exposed. Constant hard labour, and exposure
to depredation, (if they have anything of which
they can be plundered,) and occasional starva
tion; without the means of mending their condi
tion while they remain there, without the hope of
ever leaving it; such has been the condition to
which persons banished to this Colony, for periods
that in pretence were limited, have found them-
332 B.V. CHill. OF TRANSPORTATION.
selves exposed. Here then is punishment, partly
intentional, partly accidental, dealt out with the
most lavish profuseness ; but compared with its
effects in the way of example, it may be consi
dered as so much gratuitous suffering inflicted
without end or object. A sea of oblivion flows
between that country and this. It is not the
hundredth, nor even the thousandth part of this
mass of punishment that makes any impression
on the people of the mother country upon that
class of people who are most likely to commit
offences, who neither read nor reflect, and whose
feelings are capable of being excited, not by the
description, but by the exhibition of sufferings.
The system of transportation has moreover this
additional disadvantage, which not merely neu
tralizes its effects in the discouragement of
offences, but renders it, in many cases, an instru
ment of positive encouragement to the commission
of offences. A variety of pleasing illusions will,
in the minds of many persons, be connected with
the idea of transportation, which will not merely
supplant all painful reflections, but will be
replaced by the most agreeable anticipations.
It requires but a very superficial knowledge of
mankind in general, and more especially of the
youth of this country, not to perceive that a distant
voyage, a new country, numerous associates, hope
of future independence, and agreeable adventures,
will be sufficiently captivating to withdraw the
mind from the contemplation of the painful part
of the picture, and to give uncontrolled sway to
ideas of licentious fascinating enjoyment.*
Not many years ago, two young men, the one about 14
the other about 16 years of age, were condemned for a petty
theft, to be transported. Upon hearing this unlocked for
B.V. CH.II. OF TRANSPORTATION. 333
II. The second end or object of punishment is
Reformation : prevention of similar offences, on
the part of the particular individual punished in
each instance, by taking from him the will to
commit the like in future under this head what
has been done in the colony of New South Wales ?
By referring to facts, we shall find, not only
that in this respect it has been hitherto radically
defective, but that from the nature of things it
ever must remain so.
Connected with the system of transportation to
the American colonies, there were two circum
stances highly conducive to the reformation of the
convicts transported their admission, upon land
ing in the country, into families composed of men
of thrift and probity their separation from each
other.
When a master in America had engaged a
convict in his service, all the members of the
family became interested in watching his behaviour.
Working under the eye of his master, he had
neither the inducements nor the means of giving
loose to his vicious propensities. The state of
dependence in which he was placed, gave him an
obvious interest in cultivating the goodwill of
those, under whose authority he found himself
placed ; and if he still retained any principle
of honesty, it could scarcely fail to be invigorated
and developed under the encouragement that it
would find in the society with which he was
surrounded.
sentence, the youngest began to cry. " Coward," said his
companion, with an air of triumph, " who ever cried because
he had to set out upon the grand tour?" This fact was
mentioned to me by a gentleman who was witness to this scene,
and was much struck with it.
334 B.V. CH.II. OF TRANSPORTATION.
Thus it was in America. How is it in New
South Wales ? To receive the convicts upon
their landing, a set of brutes in human shape, a
species of society beyond comparison less
favourable to colonization than utter solitude.
Few other inhabitants, but the very profligates
themselves, who are sent by thousands, from
British goals, to be turned loose to mix with one
another in this desert, together with the few task
masters who superintend their work in the open
wilderness, and the military men who are sent out
with them in large but still unequal numbers, to
help keep within bounds the mischief they would
otherwise be sure to occupy themselves with, when
thus let loose. Here then there were not, as in
America, any families to receive the convicts, any
means of constantly separating them from each
other, no constant and steady inspection. Field-
husbandry is, under this system, the principal
employment; hence general- dispersion field-
husbandry carried on by individuals or heads of
families, each occupying a distinct dwelling, the
interior of which is altogether out of the habitual
reach of every inspecting eye. It is true that the
Police officers occasionally go their rounds to
maintain order and keep the convicts to their work ;
but what is to expected from a system of inspec
tion at long intervals, and which is as disgusting
to the inspectors as to the inspected. Can this be
regarded as a sufficientcheck against sloth, gaming,
drunkenness, incontinence, profaneness, quarrel
ling, improvidence, and the absence of all honour
able feeling. Immediately the back of the
inspector is turned, all the disorder which his
actual presence had suspended, is renewed. It
may easily be imagined how completely all con-
troul may be set at defiance by a set of men who
B.V. CH.II. OF TRANSPORTATION. 335
have regularly organized among themselves a
system of complicity, and who make it a matter of
triumph and agreeable pastime to assist each
other in escaping from inspection.
On this subject, the public have long been in the
possession of a very valuable document : it is a
complete history of the first sixteen years since the
establishment of this colony, which in respect of
fidelity possesses every title to confidence, and
which states the events as they happened, in the
form of a journal, accompanied with the necessary
details. What gives the work the highest claim
to confidence, is that the historiographer is also the
panegyrist, the professed panegyrist of the establish
ment : a character which, when accompanied, as
in this instance, with that candour and those
internal marks of veracity, with which it is so rare
for it to be accompanied, renders the testimony, in
this point of view, more than doubly valuable.
The general impression left by a perusal of
this work, is one of sadness and disgust : it is a
history of human nature in its most degraded and
depraved state an unmixt detail of crimes and
punishments. The men constantly engaged in
conspiracies against the government, always
forming plans for deceiving and disobeying their
task-masters, forming among themselves a society
of refractory and wily profligates a society of
wolves and foxes. The women everywhere else,
the best part of humanity, prove in New South
Wales a remarkable exception to this general
rule. The late chief magistrate says " the
women are worse than the men, and are generally
found at the bottom of every infamous transaction
that is committed in the colony."* His work
* Collins, vol. II. p. 218,
36 B.V. CH.II. OF TRANSPORTATION.
abounds with passages to the same effect. Of
such materials is it that the foundation of the
colony is formed. From such a stock, and under
such auspices, is it that the rising generation is to
be produced.
The historian has not confined himself to vague
imputations of general immorality and profligacy,
but has particularized the acts of delinquency on
which those imputations rest. The crimes that
are committed at New South Wales, in spite of the
alertness of the government and the summary
administration of justice, surpass, in the skill and
cunning with which they are managed, every
thing that has been ever witnessed in this country :
almost every page of his work contains the des
cription of offences against persons, or against
property, either of individuals or of the public.
Gaming and drunkenness produce perpetual
quarrels, which usually end in murder. The
crime of incendiarism is there practised to an
extent altogether unexampled in any other coun
try. Churches, prisons, public and private pro
perty, are all alike subjected to the devouring
element, without any regard to the extent of the
loss that may be occasioned, or the number of
lives that maybe sacrificed. "When the public
gaol was set on fire," says the historian, " it will be
read with horror, that at the time there were
confined within the walls, twenty prisoners, most
of whom were loaded with irons, and who with
difficulty were snatched from the flames. Feeling
for each other was never imputed to these mis
creants; and yet, if several were engaged in the
commission of a crime, they have seldom been
known to betray their companions in iniquity."*
Collins, vol. II. p. 197.
B.II. CII.V. OF TRANSPORTATION. 337
The bond of connection is not sympathy for each
other, but antipathy to the government, the
common enemy. For the natives they manifest
as little feeling, as towards each other. Spite
of the rigour of the law, these European savages,
are guilty of the most wanton acts of barbarity
towards the natives of the country ; instead of
cultivating a good understanding with them, which
might have been attended with many advantages,
they have converted them into the most determined
enemies.
So far from exhibiting any symptoms of refor
mation, the longer they are subjected to the
discipline of the colony, the worse they become.
Whatever may be the degree of viciousness ascribed
by the historian to the convicts during the con
tinuance of their term, they appear in his history
to be in a certain degree honest, sober, and orderly,
in comparison with those whose term is expired,
and who afterwards become settlers : they then
become the prime instigators of all the crimes
committed in the colony, and constitute the prin
cipal source of the embarrassment to which the
government is subjected.
In proof of this assertion, the historian furnishes
a most satisfactory piece of evidence. During the
first five years subsequent to the establishment of
the colony, and when there were no convicts whose
terms had expired, the conduct of the convicts was
in general orderly, and such as to give hopes of a
disposition to reformation; but in proportion as, by
the expiration of their respective terms, the num
ber of the emancipated colonists increased, the
most ungovernable licentiousness was introduced :
not only those that were thus recently emancipated,
as if to make up for the time they had lost, aban
doned themselves to every species of excess, but
338 B.V. CH.II. OF TRANSPORTATION.
they encouraged the natural viciousness of those
who still remained in a state of bondage. The
convicts rinding among these independent settlers,
who were their old companions and associates,
receivers of stolen property, and protectors from the
punishments denounced by the law, always ready
to receive them in their retreat from justice, and to
conceal them from detection, became more insolent
and refractory, anxiously waiting for the time
when they also would be entitled to assume this
state of savage independence.
What possible means can be devised to neutra
lize this perpetually increasing influx of vice. All
the expedients that have hitherto been employed
have proved completely fruitless, and there would
be no difficulty in shewing that so they must
ever be. Instruction, moral and religious, seems
almost altogether vain : the very nature of the
population bids defiance to the establishment of an
effectual system of police, or to an uniform ad
ministration of the laws : rewards were found as
inefficient as goodwill in procuring evidence ;
the enormous consumption of spirituous liquors,
the principal cause of all the disorders in the
colony, has from local circumstances, hitherto been
found altogether irrepressible. Under each of these
heads a few remarks may suffice.
With respect to religious instruction, little could
be expected from two or three chaplains for a
colony, divided into eight or ten stations, each to
appearance at too great a distance from the rest
to send auditors to any other. To minds so
disposed as those of the convicts, of what advan
tage was the attendance on divine service for one
or two hours on one day in the week ? And with
what profit could religious instruction be expected
to be received by men who were "made (as the
B.V. C1I.II. OF TRANSPORTATION. 339
historian expresses it*) to attend divine service ?"
To rid themselves of the occasional listlessness
they were thus made to endure, the Church was
got rid of by an incendiary plot. To punish them
(if by accident another building fit for the purpose
had not been already in existence) they were to
have been employed on the Sunday in the erecting
another building for the purpose. -\ To work on
Sunday they might be made, but will they ever be
made to lend an attentive ear and a docile heart to
authoritative instruction. Even the women, says
the historian, were extremely remiss in their atten
dance on divine service, and were never at a loss
for mendacious pretences for excusing themselves.
In short, instead of being observed as a day dedi
cated to religious duties, Sunday appears in that
colony to have been distinguished only by the riot
and debauchery with which it was marked : those
who did not attend divine service, taking advantage
of the absence of those who did, to plunder their
dwellings and destroy their crops.
It has just been seen with how very sparing a
hand, religious instruction for the Protestant part
of the establishment was supplied. For the
spiritual instruction of the Catholic part of the
colony, which, from the large importations made
from Ireland must now have become very nume
rous, it does not appear that any provision what
ever was made. It is true, that in one of the impor
tations of convicts from Ireland, a priest of the
Catholic persuasion, whose offence was sedition,
was comprized.;): If, instead of a seditious clergy
man, would not the expense have been well bes-
* Col. II. p. 122. f Collins, II. p. 129.
t Collins, II. p. 293.
340 B.V, CH.II. OF TRANSPORTATION.
towed in sending out a loyalist clergyman of the
same religious persuasion.*
As to the police, it is necessarily in an extreme
degree debilitated by the corrupt state of the
subordinate class of public functionaries. In a
population that warranted the utmost distrust on
the part of the government, it was found necessary
to restrain the free intercourse between the several
parts of the colony. All persons, officers excepted,
were forbidden to travel from one district of the
settlement to another without passports. These
regulations proved, however, altogether nugatory :
the constables whose duty it was to inspect these
passports, f either from fear or corruption, neglected
to do their duty, whilst, as has been already men
tioned, a most effectual bar to the preservation of
any well regulated system of police, was found in
those convicts whose terms had expired, and who
were ever ready to give protection and assistance
to the criminal and turbulent.
With regard to all classes of offences committed
in this colony, justice was paralyzed by a principle
which ensured impunity, and which it seems
impossible to eradicate. With the historian, who
was also Judge Advocate, it is a matter of per
petual complaint, that is was scarcely possible
to convict an offender who was not taken in the
* There is a passage in Collins (II. p. 51.) highly charac
teristic of the light in which the securing the means of attendance,
and thence attendance itself on divine worship, on the part of
the convicts, was regarded by the constituted authorities.
A church-clock having been brought to the settlement in " The
Reliance," and no building fit for its reception having been
since erected, preparations were now making for constructing
a tower fit for the purpose, to iv hich might be added a church,
whenever at a future day the increase of labourers might
enable the governor to direct such an edifice to be built.
I Collins, II. p. 139.
B.V. CH.II. OF TRANSPORTATION. 341
very act of committing an offence. Evidence was
on almost all occasions altogether as inaccessible,
as if there had been a combination and tacit
agreement among the majority of the inhabitants
of the colony to paralyze the arm of justice, by a
refusal to bear testimony. He speaks of five
murders in one year,* (1796) which were left
unpunished, notwithstanding the strong presump
tions which indicated the guilty parties, because
the necessary witnesses would not come forward,
even though extraordinary rewards were offered.
One such fact is sufficient : it is superfluous to
cite others of the same nature.
The most prominent cause of this state of
abandoned profligacy, is the universal and immo
derate passion for spirituous liquors : it is the
exciting cause which leads to every species of vice
gaming, dissoluteness, depredation, and murder
servants, soldiers, labourers, women, the youth
of both sexes, prisoners and their goalers, are all
alike corrupted by it ; it was carried to such a
pitch, that numbers of the settlers were in the
practice of selling the whole of their crops, as soon
as they were gathered, in order to purchase their
favourite liquor. The attempts made from time to
time by the government, to check this practice, have
proved altogether unavailing : the policy of the go
vernment upon this point appears not to have been
quite steady : sometimes it has allowed the trade
in spirituous liquors, at other times it has been for
bidden. But whatever may be the policy of the go
vernment, experience shows that from the diffusive
ness of the population, as well as from other causes,
no precautions within its power will ever diminish
the quantity of this liquid poison consumed in any
* Collins, II. p. 4.
342 B.V. CH.II. OF TRANSPORTATION.
part of the colony. The greater the population,
and the more distant the stations from thereat of
government, the more easy will it be tocarry on
private distilleries, and to prevent them from being-
detected. And even if the supply thus produced
were unequal to the demand, it would be impossible
to prevent smuggling on an extent of coast which
the whole navy of England would be unequal to
guard. If it were found impossible to restrain this
evil when the colony was confined to a single
station, and a single harbour, can any better
success be looked for now that the settlements are
spread wide over the face of the country, when there
are numerous settlers constantly employed in the
manufacture of this article, and every ship that
arrives is provided with an abundant supply, the
sale of it being more certain and more profitable
than that of any other commodity.
Such has been the state of the convict population
of this colony past reformation none future
reformation still more hopeless. We have perhaps
dwelt too long upon this part of the subject: fortu
nately the topics which remain may be compressed
into a narrower compass.
III. The third object or end of punishment is
incapacitation ; taking from the delinquent the
power of committing the same crimes
Transportation accomplished this object, with
relation to a certain place. The convict, whilst in
New South Wales, cannot commit crimes in
England ; the distance between the two places in a
considerable degree precludes his illegal return,
and this is the sum of the advantage.
Whilst the convict is at Botany Bay, he need
not be dreaded in England, but his character
remains the same, and the crimes which are mis
chievous in the mother country are mischievous in
B.V.CH.II. OF TRANSPORTATION. 343
the colony we ought not, therefore, to attribute to
this punishment an advantage which it does not
possess. That an inhabitant of London should
rejoice in the removal to a distance of a dangerous
character, is easily comprehended ; his particular
interest is touched. But a punishment ought not
to meet the approbation of a legislature, which,
without diminishing the number of crimes com
mitted, only changes the place of their commission.
The security, great as it may appear to be,
against returns both legal and illegal, has not been
so effectual as might have been expected. The
number of convicts who left the colony between
the years 1790 and 1796, the accounts of which
are scattered over the whole of Collins work,
amount in the whole to 166, of which, 89 con
sisted of those whose terms had expired, and 76
of those whose terms had not expired. This is,
however, very far from being the total amount of
either description of those that had quitted the
colony with or without permission. Escapes are
in various parts of the work mentioned as being
made in clusters, and the numbers composing each
cluster not being stated, could not be carried to
the above account.
The number of escapes will, most probably,
increase as commerce extends, and as the convicts
become more numerous, and consequently possess
greater facilities for escaping.
IV. The fourth end or object of punishment is
the making compensation or satisfaction to the party
injured.
On this head there is but one word to be said.
The system of transportation is altogether des
titute of this quality. It is true that this objec
tion has no weight, except in comparison with a
system of punishment in which provision is made
344 B.V. CH.II. OF TRANS PORT ATI OX.
out of the labour of the offender for the compensa
tion to the party injured.
V. The fifth end or object proper to be kept in
view in a system of penal legislation, is the col
lateral object of Economy.
If it could be said of the system in question,
that it possessed all the several qualities desirable
in a plan of penal legislation, its being attended
with a certain greater degree of expence would
not afford a very serious objection to it ; but in
this case this system, the most defective ir itself,
is, at the same time, carried on at a mo ,t enor
mous expence.
Upon this subject the 28th Report of the Com
mittee of Finance contains the most accurate and
minute information. From that Report it appears,
that the total expence incurred during the ten or
eleven first years of the establishment, ending in
the year 1798, amounted to 1,037,000/., which
sum being divided by the number of convicts, will
be found to amount to about 461. a-head. A pos
sible reduction is in that Report contemplated,
which might in time cut down the expence to
about 371. per head. To this expence, however,
must be added the value of each mans labour,
since, if not considered as thrown away, the
value ought to be added to the account of expence.
Consider New South Wales as a large manufac
turing establishment; the master manufacturer,
on balancing his accounts, would find himself
minus 46/. for every workman that he employed.
What enhances the expence of this manufactu
ring establishment beyond what it would be in
the mother country, are, 1, the expence incurred
in conveying the workmen to a distance of
between two and three thousand leagues ; 2,
the maintenance of the civil establishment con-
B.V. CH.II. OF TRANSPORTATION. 345
sisting of Governors, Judges, Inspectors, Police
Officers, &c. ; 3, the maintenance of a military
establishment, the sole object of which is to
preserve subordination and peace in the colony ;
4, the wide separation of the workmen, their
untrustworthiness, their profligacy, favoured by
the local circumstances of the colony, and the
trifling value of the labour that can be extracted
by compulsion from men who have no interest in
the produce of their labour ; 5, the high price of
all the tools and raw materials employed in
carrying on the manufactory, which are brought
from Europe at the risk and expence of a long
voyage.
If it be impossible to find a single clerk in
Manchester or Liverpool who would not have
taken all these circumstances into his considera
tion in making such a calculation as that in ques
tion, and if after, or without having made it, there
is not one man of common sense who would have
undertaken such a scheme, a necessary conclusion
is, that the arithmetic of those who risk their
own property, is very different from that of those
who speculate at the expence of the public.
In addition to the evils above enumerated as
attending the system of transportation to New
South Wales, the punishment thus inflicted is
liable to be attended with various species of
aggravation, making so much clear addition to the
punishment pronounced by the legislator.
When a punishment is denounced by the
legislature, it ought to be selected as the one best
adapted to the nature of the offence ; his will
ought to be that the punishment inflicted should
be such as he has directed; he regards it as
sufficient ; his will is that it should not be made
either more lenient or more severe; he reckons
346 B.V. CH.II. OF TRANSPORTATION.
that a certain punishment, when inflicted, pro
duces a given effect, but that another punishment,
if by accident coupled with the principal one,
whether from negligence or interest on the part of
subordinates, exceeding the intention of the law,
is so much injustice, and being nugatory in the
way of example, produces so much uncom-
pensated evil.
The punishment of transportation, which, ac
cording to the intention of the legislator, is
designed as a comparatively lenient punishment,
and is rarely directed to exceed a term of from
seven to fourteen years, under the system in
question is, in point of fact, frequently converted
into capital punishment. What is the more to be
lamented is, that this monstrous aggravation will,
in general, be found to fall almost exclusively
upon the least robust and least noxious class of
offenders those who, by their sensibility, former
habits of life, sex and age, are least able to contend
against the terrible visitation to which they are
exposed during the course of a long and perilous
voyage. Upon this subject the facts are as
authentic as they are lamentable.
In a period of above eight years and a half, viz :
from the 8th of May 1787, to the 31st Decem
ber 1795, of five thousand one hundred and
ninety -six embarked, five hundred and twenty-
two perished in the course of the voyage; nor is
this all, the accounts being incomplete. Out of
twenty-eight vessels, in twenty- three of which,
the mortality just spoken of, is stated to have
taken place ; there are five in respect of which the
number of deaths is not mentioned.*
* The mortality attendant upon these first voyages to New
South Wales appears greatly to have originated in negligence.
B.V. CH.II. OF TRANSPORTATION.
A voyage, however long it may be, does not
necessarily shorten human existence. Captain
Cook went round the world and returned without
the loss of a single man. It necessarily follows,
therefore, that a voyage which decimates those that
are sent upon it must be attended with some very
peculiar circumstances. In the present case, it
is very clear that the mortality that thus prevailed
arose partly from the state of the convicts, partly
from the discipline to which they were subjected.
Allow them to come on deck, everything is to
be apprehended from their turbulent dispositions :
confine them in the hold, and they contract the
most dangerous diseases. If the merchant, who
contracts for their transportation, or the captain
of the ship that is employed by him, happens to
be unfeeling and rapacious, the provisions are
scanty and of a bad quality. If a single prisoner
happens to bring with him the seed of an infec
tious disorder, the contagion spreads over the
whole ship. A ship ( The Hillsborough) which,
in the year 1799, was employed in the conveyance
of convicts, out of a population of 300 lost 101.*
It was not, says Col. Collins, a neglect of any of
the requisite precautions, but the gaol fever,
which had been introduced by one of the prisoners,
that caused this dreadful ravage.
Whatever may be the precautions employed,
by any single accident or act of negligence, death,
under its most terrific forms, is at all times liable
to be introduced into these floating prisons which
have to traverse half the surface of the globe, with
Cargoes of convicts have in many latter instances been carried
out without a single death occurring.
* Coll. vol. II, p. 222.
348 B.V. CH.II. OF TRANSPORTATION.
daily accumulating causes of destruction within
them, before the diseased and dying can be
separated from those who, having escaped infec
tion, will have to drag out a debilitated existence
in a state of bondage and exile.
Can the intention of the legislator be recognised
in these accumulated aggravations to the punish
ment denounced? Can he be said to be aware
of what he is doing when he denounces a punish
ment, the infliction of which is withdrawn alto
gether from his controul, which is subjected to a
multiplicity of accidents the nature of which is
different from what it is pronounced to be and
in its execution bears scarce any resemblance to
what he had the intention of inflicting? Justice,
of which the most sacred attributes are certainty
precision, which ought to weigh with the most
scrupulous nicety the evils which it distributes,
becomes under the system in question a sort of
lottery, the pains of which fall into the hands of
those that are least deserving of them. Translate
this complication of chances and see what the
result will be " I sentence you," says the Judge,
" but to what I know not perhaps to storm and
shipwrecks perhaps to infectious disorders
perhaps to famine perhaps to be massacred by
savages perhaps to be devoured by wild beasts
Away, take your chance, perish or prosper,
suffer or enjoy ; I rid myself of the sight of you,
the ship that bears you away saves me from
witnessing your sufferings, I shall give myself no
more trouble about you."
But it may perhaps be said that, however
deficient in a penal view, New South Wales
possesses great political advantages: it is an
infant colony, the population will by degrees
B.V. CH.II. OF TRANSPORTATION.
increase, the successively rising generations will
become more enlightened and more moral, and
after the lapse of a certain number of centuries, it
will become a dependent settlement of the highest
political importance.
The first answer to this is, if it be thought to
require any, that of all the expedients that could
have been devised for founding a new colony in
this or in any other place, the most expensive and
the most hopeless, was the sending out as the
embryo stock, a set of men of stigmatized character
and dissolute habits of life. If there be any one
situation more than another that requires patience,
sobriety, industry, fortitude, intelligence, it is thatof
a set of colonists transported to a distance from their
native country, constantly exposed to all sorts of pri
vations, who have every thing to create, and who, in a
newly formed establishment, have to conciliate a set
of savage and ferocious barbarians, justly dreading
an invasion on their lives and property. Even an old
established and well organized community would
be exposed to destruction, from an infusion of
vicious and profligate malefactors, if effectual
remedies were riot employed to repress them :
such characters are destitute of all qualities, both
moral and physical, that are essential in the
establishing a colony, or that would enable them to
subdue the obstacles opposed by nature in its rude
and uncultivated state.
Where colonization has succeeded, the character
of the infant population has been far different. The
founders of the most successful colonies have
consisted of a set of benevolent and pacific Quakers,
of men of religious scruples who have transported
themselves to another hemisphere, in order that
they might enjoy undisturbed liberty of conscience ;
350 B.V. CH.II. OF TRANSPORTATION.
of poor and honest labourers accustomed to frugal
and industrious habits.*
* That New South Wales has, since these papers were written,
become a flourishing colony, is owing not so much to convict
transportation, but to the admission of free settlers. The evils
above pointed out continue to exist, but their influence is
lessened by the infusion of honest and industrious settlers.
The following quotation confirms the reasoning of Mr
Bentham, and shows that the greater portion of the evils he
points out, continue unabated. Ed.
If convicts are still to be transported hither, the only chance
of their reformation consists in scattering them widely over the
country, and giving them pastoral habits. Convict transporta
tion is at best a bad system of colonization ; and Governor
Macquarrie, by his preference of the convict to the free, made it
worse for the plantation, and totally inoperative as the penalty
of felony, or the penitentiary of vice.
" The evils and expense of the transportation system would
certainly be lessened by placing the convicts more in the service
of farming and grazing settlers, out of the reach of the tempta
tions and evil communications of large towns, the establishment
of which was too much the policy of the late governor. The
salutary life of a shepherd or a stockman, would gradually soften
the heart of the most hardened convict; but instead of this,
Governor Macquarrie s system was to keep them congregated in
barracks, and employed, at a ration of a pound and a half of
meat and the same quantity of flour per diem, upon showy
public buildings. Of wretches possessed of no better means of
reformation than these, it could not be expected that industrious
colonists should ever be made. When their period of transpor
tation expired, or was remitted by favour, they would therefore
take their grant of land and allowances for settling, and sell
them the next hour for spirits."
Journal of an Excursion across the Blue Mountains of New
South Wales. Edited by Baron Fields, p. 457. Lond. 1825.
3.51
CHAPTER III.
PANOPTICON PENITENTIARY.
THE plans of Mr Bentham upon this subject
are already before the public : for the purpose of
the present work, it will be only necessary shortly
to explain the three fundamental ideas which he
lays down.
I. A Circular, or ^h/gonaL Building, with cells
on each story in the circumference; in the centre,
a lodge for the Inspector, from which he may see
all the prisoners without being himself seen, and
from whence he may issue all his directions, with
out being obliged to quit his post.
II. Management by Contract. The contractor
undertaking the whole concern at a certain price
for each prisoner, reserving to himself the dispo
sal of all the profit which may arise from their
labours, the species of which is left to his choice.
Under this system, the interest of the Governor
is, as far as possible, identified with his duty.
The more orderly and industrious the prisoners,
the greater the amount of his profits. He will,
therefore, teach them the most profitable trades,
and give them such portion of the profits as shall
excite them to labour. He unites in himself tfye
characters of Magistrate, Inspector, Head of a
Manufactory, and of a family ; and is urged on by
the strongest motives faithfully to discharge all
these duties.
352 B.V. CH.III. PANOPTICON PENITENTIARY.
III. Responsibility of the Manager. He is bound
to assure the lives of his prisoners. A calculation
is made of the average number of deaths in the
year, among the mixed multitude committed to
his care, and a certain sum is allowed to him for
each ; but at the end of the year, he is required
to pay a similar sum for everyone lost by death or
escape. He is, therefore, constituted the assurer
of the lives and safe custody of his prisoners ;
but to assure their lives is, at the same time, to
secure the multitude of cares and attentions, on
which their health and well-being depend.
Publicity is the effectual preservative against
abuses under the present system, prisons are
covered with an impenetrable veil ; the Panopti
con, on the contrary, would a . , so to speak, trans
parent. Accessible at - all hours, to properly
authorised Magistrates ; accessible to everybody,
at properly regulated hours, or days. The spec
tator, introduced into the central lodge, would
behold the whole of the interior, and would be a
witness to the detention of the prisoners, and i*
judge of their condition.
Some individuals, pretending to a high degree of
sensibility, have considered this continual inspec
tion, which constitutes the peculiar merit of Mr
Bentham s plan, as objectionable. It has appeared
to them as a restraint more terrible than any other
tyranny : they have depicted an establishment of
this kind as a place of torment. In so doing,
these men of sensibility have forgotten the state
of most other prisons, in which the prisoners
heaped together, can enjoy tranquillity neither
day nor night. They forget, that under this sys
tem of continual inspection, a greater degree of
liberty and ease can be allowed, that chains and
shackles may be suppressed, that the prisoners
B.V. CH.III. PANOPTICON PENITENTIARY. 353
may be allowed to associate in small companies,
that all quarrels, tumults, and noise, bitter sources
of vexation, will be prevented ; that the prisoners
will be protected against the caprices of their
goalers, and the brutality of their companions ;
whilst those frequent and cruel instances of neglect
which have occurred, will be prevented by the
facility of appeal which will be afforded to the
principal authority. These real advantages are
overlooked by a fantastic sensibility which never
reasons.
Let us suppose a prison established upon this
plan ; and then observe in what manner it contri
butes to the several ends of punishment.
FIRST END Example.
It would be placed in the neighbourhood of the
metropolis, where the greatest number of persons
are collected together, and especially of those
who require to be reminded, by penal exhibitions,
of the consequences of crime. The appearance
of the building, the singularity of its shape, the
walls and ditches by which it is surrounded, the
guards stationed at its gates, would all excite ideas
of restraint and punishment, whilst the facility
which would be given to admission, would scarcely
fail to attract a mu-Mtude of visitors and what
would they see? a set of persons deprived of
liberty which they have misused ; compelled to
engage in labour, which was formerly their aver
sion, and restrained from riot and intemperance, in
which they formerly delighted ; the whole of them
clothed in a particular dress, indicating the infamy
of their crimes. What scene could be more instruc
tive to the great proportion of the spectators?
What a source of conversation, of allusion, of
domestic instruction. How naturally would the
A A
354 B.V. CH.III. PANOPTICON PENITENTIARY.
aspect of this prison lead to a comparison between
the labour of the free man and the prisoner,
between the enjoyments of the innocent and the
privations of the criminal. And, at the same time,
the real punishment would be less than the appa
rent : the spectators, who would have only a
momentary view of this doleful spectacle, would
not perceive all the circumstances which would
effectively soften the rigours of this prison. The
punishment would be visible, and the imagination
would exaggerate its amount, its relaxations would
be out of sight, no portion of the suffering inflicted
would be lost. The greater number even of the
prisoners, being taken from the class of unfortunate
and suffering individuals, would be in a state of
comfort whilst ennui, the scourge of ordinary
prisons, would be banished.
SECOND OBJECT Reformation.
Idleness, intemperance, and vicious connections,
are the three principal causes of corruption among
the poor ; when habits of this nature have become
to such a degree inveterate, as to surmount the
tutelary motives, and to lead to the commission of
crimes, no hope of reformation can be entertained
but by a new course of education, an education
that shall place the patient in a situation in which
he will find it impossible to gratify his vicious pro-
pensities, and where every surrounding object will
tend to give birth to habits and inclinations of a ^
nature altogether opposite. The principal instru
ment which can be employed on this occasion is,
perpetual superintendance. Delinquents are a
peculiar race of beings, who require unremitted
inspection. Their weakness consists in yielding
to the seductions of the passing moment. Their
minds are weak and disordered, and though their
15. V. CH.III. PANOPTICON PENITENTIARY. 355
disease is neither so clearly marked nor so incu
rable as that of ideots and lunatics, like these, they
require to be kept under restraints, and they can
not, without danger, be left to themselves.
Under the safeguard of this continual inspection,
without which, success is not to be expected, the^
Penitentiary House described, includes all the
causes which are calculated to destroy the seeds
of vice, and to rear those of virtue.
I. Labour. It is admitted that constraint,
instead of inspiring a taste for labour, is calculated
to augment the aversion to it. It must, however,
be recollected, that in this case, labour is the only
resource against ennui ; that being imposed upon
all, it will be encouraged by example, and ren
dered more agreeable by being carried on in the
company of others ; it will be followed by imme
diate reward, and the individual being allowed a
share in the profits, it will lose the character of
servitude, by his being rendered, in measure, a
partner in the concern. Those who formerly
understood no lucrative business, will, in this new
course of education, obtain new faculties and new
enjoyments; and when they shall be set free, will
have learned a trade, the profits cf which are
greater than those of fraud and rapine.
II. Temperance. We have already had occasion
to show that nearly all the crimes committed at
Botany Bay, either originate or are increased by
the use of spirituous liquors, and that it is impos
sible to prevent their use. Here the evil is
arrested in its source, it. will not be possible to
smuggle in a drop of this poison transgressions
will therefore be impossible. Man yields to
necessity difficulties may stimulate his desires,
but an absolute impossibility of satisfying them,
destroys them when they are not supported by
356 B.V. CH.III. PANOPTICON PENITENTIARY.
long established habits. There is much humanity
in a strict rule, which prevents not only faults and
chastisements, but temptations also.
III. Separation into classes. The Panopticon is
the only practicable plan which admits of the pri
soners being divided into little societies, in such
manner as to separate those whose vicious pro
pensities are most contagious. These associations
can hardly fail to afford opportunities for the per
formance of reciprocal services, for the exercise of
the affections, and the formation of habits favour
able to reformation. The relation of master and
scholar will gradually be formed among them ;
opportunities will thus be given for bestowing
rewards for instruction ; for exciting emulation in
learning, and the creation of a sentiment of honour
and self-esteem, which will be among the first
fruits of application. Ideas of improvement and
lawful gains will, by degrees, supplant those of
licentiousness and fraudulent acquisition. All
these advantages arise out of the very nature of
the establishment.
Why should not unmarried prisoners be allowed
to inter-marry. It would operate as a powerful
spur to those who aimed at attaining this reward,
which should only be bestowed on account of
orderly conduct and industry.
These little societies present an additional secu
rity, arising from their mutual responsibility. It
is both just and natural to say to them, " You live
together, you act together, you were able to have
prevented this crime, and if you have not so done,
you are accomplices in it." Thus the prisoners
would be converted into guardians and inspectors
of each other. Each cell would be interested in
the good conduct of every one of its members.
If any one of them should be distinguished for its
B.V. C1I.III. PANOPTICON PENITENTIARY. 357
good order, some distinction might be bestowed
upon it, which should be visible to all. By such
means, a feeling of honour might be excited even
in the abode of ignominy.
IV. Instruction. Indigence and ignorance are
the parents of crime. The instruction of those
prisoners, who are not too old to learn, confers
upon them many benefits at once ; it affords great
assistance in changing the habits of the mind, and
elevating them, in their own estimation, from the
class of beings who are degraslod on account of
the inferiority of their education.. Different studies
may usefully fill up the intervals of time, when
mechanical operations are suspended ; both pru
dence and humanity dictating the occupation of
those intervals, instead of abandoning to them
selves minds to whom idleness is a burthen
difficult to bear. But the object is much more
important, especially with regard to young offen
ders, who form the largest proportion of the whole.
cThe prison should be their school, in which
should learn those habits, which should prevent
their ever entering it again.
The services of religion ought to be rendered
attractive, in order that they may be efficacious.
They may be performed in the centre of the build
ing, without the prisoners quitting their cells.
The central lodge may be opened for the admission
of the public, the worship adapted to the nature
of the establishment, may be accompanied with
solemn music to add to its solemnity. The Chap
lain engaged in its performance would not be a
stranger to the prisoners ; his instructions should
be adapted to the wants of those to whom they
are addressed ; he would be known to them as
their daily benefactor, who watches over the pro
gress of their amendment ; who is the interpreter
358 B.V. CH.III. PANOPTICON PENITENTIARY.
of their wishes, and their witness before their
superiors. As their protector and instructor, as a
friend who consoles and who enlightens them, he
unites all the titles which can render him an object
of respect and affection. How many sensible and
virtuous men would seek a situation which pre
sents, to a religious mind, opportunities for con
quests more interesting than the savage regions of
Africa and Canada.
There is, at all times, great reason for distrust
ing the reformat^ of criminals. Experience too
often justifies the maxim of the poet,
" L honneur est commeune ile escarpeeet sans bords :
On n y pent plus rentrer des qu on en est dehors."
But those who are most distrustful and incredu
lous of good, must acknowledge at least, that
there is a great difference to be made in this
respect, on account of the age of the delinquents
and the nature of their offences ; youth may be
moulded like soft wax, whilst advanced age will
not yield to new impressions. Many crimes ai
not deeply rooted in the heart, but spring up there
from seduction, example, and above all, indigence
and hunger. Some are sudden acts of vengeance,
which do not imply habitual perversity. These
distinctions are just and not controverted, it must
also be admitted, that the plan we have described
presents the most efficacious means for the amend
ment of those who have preserved some remains
of honest principle.
THIRD OBJECT Suppression of power to injure.
Whatever may be its effects in producing inter
nal reformation and correcting the will. The
Panopticon unites all the conditions requisite for
the prevention of the commission of new offences.
B.V. CH.III. PANOPTICON PENITENTIARY. 359
Under this head, the prisoners may be consi
dered at two periods the period of their imprison
ment ; the period posterior to their liberation.
During the first, suppose them as wicked as you
will, what crimes can they commit whilst under
uninterrupted inspection, divided by cells at all
times sufficiently strong to resist a revolt, unable
to unite or to conspire without being seen; respon
sible the one for the other ; deprived of all com
munication with the exterior ; deprived of all
intoxicating liquors (those stimulants to dangerous
enterprises) ; and in the hand of a governor who
could immediately isolate the dangerous individual.
The simple enumeration of these circumstances
inspires a feeling of perfect security. When we
recal the picture of Botany Bay, the contrast
becomes striking as it can be rendered.
The prevention of crimes on the part of delin
quent prisoners, is also in proportion to the diffi
culty of their escape ; and what system affords in
this respect a security comparable to that of the
Panopticon.
With respect to discharged prisoners, the only
absolute guarantee is in their reformation.
Independently of this happy effect, which may
be expected in this plan more than upon any
other, the liberated prisoners would, for the most
part, have acquired, by the savings made for them
out of their part of the profit of their labour, a
stock which will secure them from the immediate
temptations of want, and give them time to avail
themselves of those resources of industry, which
they have acquired during their captivity.
But this is not all. I have reserved for this
Chapter the mention of an ingenious plan, which
the author of the Panopticon has proposed as a
360 B.V. CH.III. PANOPTICON PENITENTIARY.
supplement to this scheme of punishment. He
has paid particular attention to the dangerous and
critical situation of discharged prisoners, when re-
entering the world after a detention, perhaps, for
many years : they have no friends to receive them ;
without reputation to recommend them ; with
characters open to suspicion ; and many times,
perhaps, in the first transports of joy for recovered
liberty, as little qualified to use it with discretion,
as the slaves who have broken their fetters. By
these considerations, the author was led to the
idea of an auxiliary establishment, into which the
discharged prisoners might be admitted when they
leave the Panopticon, and be allowed to continue
for a longer or shorter period, according to the
nature of their crimes, and their previous conduct.
The details of the plan would be foreign to the
present subject. It must suffice to say, that in
this privileged asylum, they would have different
degrees of liberty, the choice of their occupations,
the entire profit of their labour, with fixed and
moderate charges for their board and lodging, and
the right of going and returning, on leaving a cer
tain sum as a security ; they would wear no pri
soner s uniform, no humiliating badge. The
greater number, in the first moment of their embar
rassment, whilst they have no certain object in
view, would, themselves, choose a retreat so suit
able to their situation. This transient sojourn,
this noviciate, would serve to conduct them by
degrees to their entire liberty ; it would be an inter
mediate state between captivity and independence,
and afford a proof of the sincerity of their amend
ment. It would afford a just precaution against
individuals in whom an immediate and absolute
confidence could not be reposed without danger.
B.V. CH.III. PANOPTICON PENITENTIARY. 361
FOURTH OBJECT Compensation to the party injured.
In most systems of jurisprudence, when a delin
quent has been corporally punished, justice is
thought to have been satisfied ; it is not in general
required that he should make compensation to the
party injured.
It is true that, in the greater number of cases,
compensation could not be exacted of him. Delin
quents are commonly of the poorer class, ex nihilo,
nihiljit.
If they are idle during their imprisonment, far
from being able to render satisfaction, they con
stitute a charge upon society.
If they are condemned to public works, these
works, rarely sufficiently lucrative to cover the
expense of undertaking them, cannot furnish any
surplus.
It is only in a plan like the Panopticon,Jn which,
by the combination of labour and economy in the
administration, it is possible to obtain a profit
sufficiently great to offer at least some portion of
indemnity to the parties injured Mr Bentham
had made engagements upon this head in his con
tract with the ministers. In the prisons of Phila
delphia, they levy upon the portion of profit allowed
to the prisoner, the expenses of his detection
and prosecution. One step more, and they will
grant indemnity to the parties injured.
FIFTH OBJECT Economy.
To say that of two plans of equal merit, the most
economical ought to be preferred, is to advance a
proposition which must appear trivial to all those
who do not know that the expense of an enterprise is
often its secret recommendation, and that economy
is a virtue against which there exists a general
conspiracy.
362 B.V. CH.III. PANOPTICON PENITENTIARY.
In the contract for the Panopticon, one thousand
convicts were to have cost the state 121. per head,
without including the expense of constructing- the
prison, which was estimated at 12,000/. and the
ground at 10,000/., upon which reckoning interest
at 51. per cent., 11. 10s. ought to be added for the
annual expense of each, making the total expense
of each individual, 13/. 10*. per annum.
It should be recollected that at this time the
average expense of each convict in New Holland,
was 371. per annum, nearly three times as much.
Besides the author of the Panopticon assured
I. An indemnity to the parties injured.
II. He allowed a fourth part of the profits of
their labour to the prisoners.
III. He was to make a future reduction in the
expense to government.
A new undertaking like that of the Panopticon,
intended to embrace many branches of industry,
would not yield its greatest profits at first ; it would
be expensive at first and only become profitable by
degrees. Time would be required for establishing
its manufactories, and for the cultivation of the
grounds applicable to the support of the establish
ment ; for forming its pupils, and regulating their
habits, in a word bringing to perfection the whole
economy of its system. Mr Bentham had ex
pressly stipulated for the publicity of his accounts;
and if the advantages, as was expected, had become
considerable, the government would have been
enabled to take advantage of them in obtaining
more favourable terms in its subsequent contracts.
Mr Bentham reckoned, from the calculations he
had made, and respecting which he had consulted
experienced persons, that after a short time the
convicts would cost the government nothing.
Laying aside everything hypothetical, it is clear
B.V. CH.1II. PANOPTICON PENITENTIARY. 363
that a Penitentiary at home ought to be less ex
pensive than a colonial establishment. The rea
sons for this opinion have been given when
speaking of transportation to Botany Bay.
I have shewn the excellence of this plan with7~
reference to all the ends of punishment, it remains
to be observed that it attains its object without
producing any of those collateral inconveniences
which abound in colonial transportation. There
is no prolonged sojourn in the hulks. none of the
dangers of a long sea voyage no promiscuous
intercourse of prisoners no contagious sickness
no danger of famine no warfare with the savage
natives no rebellions no abuse of power by the
persons in authority in short an entire absence
of the accidental and accessory evils, of which
every page of the history of the penal colony
affords an example. What an immense economy
in the employment of punishment. It will no
longer be dissipated and lost upon barren rocks,
and amid far distant deserts, it will always pre
serve the nature of legal punishment; of just and
merited suffering, without being converted into
evils of every description which excite only pity.
The whole of it will be seen. It will all be useful;
it will not depend upon chance ; its execution
will not be abandoned to subordinate and mer
cenary hands the legislator who appoints it may
incessantly watch over its administration.
The success which may be obtained from a
well regulated Penitentiary, is no longer a simple
probability founded upon reasoning. The trial
has been made ; it has succeeded even beyond
what has been hoped. The Quakers of Pensylvania
have the honour of making the attempt; it is one
of the most beauteous ornaments of the crown of
humanity which distinguishes them among all
364 B.V. CH.III. PANOPTICON PENITENTIARY.
other societies of Christians. They had a long
time to struggle with the ordinary obstacles of
prejudice and indifference on the part of the
public the routine of the tribunals, and repulsive
incredulity of frigid reasoners.
The Penitentiary house at Philadelphia, is des
cribed not only in the official reports of its gover
nor, but also in the accounts of two disinterested
observers, whose agreement is the more striking,
as thev brought to its examination neither the
tf
same prejudices nor views the one was a French
man, the Duke de Liancourt, well acquainted
with the arrangements of hospitals and prison^-
the other an Englishman, Captain Turnbull,
more occupied with maritime affairs than politics
or jurisprudence.
Both of them represent the interior of this
prison as a scene of peaceful and regular activity.
Hauteur and rigour are not displayed on the part
of the goalers, nor insolence nor baseness on the
part of the prisoners. Their language is gentle, a
harsh expression is not permitted. If any fault is
committed, the punishment is solitary confinement,
and the registration of the fault in a book, in which
every one has an account opened as well for good
as for evil. Health, decency, and propriety reign
throughout. There is nothing to offend the most
delicate of the senses ; no noise, no boisterous
songs nor tumultuous conversation. Every one
engaged with his own work, fears to interrupt the
labours of others. This external peace is main
tained as favourable to reflection and labour, and
well calculated to prevent that state of irritation,
so common elsewhere among prisoners and their
keepers.
" I was surprised" said Captain Turnbull, " at
finding a woman exercising the functions of
B.V. CH.III. PANOPTICON PENITENTIARY. 3G5
goaler ; this circumstance having excited my
curiosity, I was informed that the husband having
filled the same situation before her, amidst the
attentions he was paying to his daughter, he was
seized with the yellow fever and died, leaving the
prisoners to regret that they had lost a friend and
protector. In consideration of his services, his
widow was chosen to succeed him. She has dis
charged all the duties with equal attention and
humanity."
Where shall we find similar traits in the registers
of a prison. They call up the pictures of ci future
golden age depicted by a prophet, when " the
wolf shall lie down with the lamb, and a little
child shall lead them."
I cannot refuse to transcribe two other facts,
which do not stand in need of any commentary :
" During the yellow fever in 1793, there was much
difficulty in obtaining nurses for the sick in the
hospitals at Bush Hill. Recourse was had to the
prison. The question was asked, the danger of the
service was explained to the convicts, as many
offered themselves as were wanted. They dis
charged their duties faithfully till the conclusion of
that tragic scene, and none of them demanded any
wages till the period of their discharge."
The females gave another proof of good conduct
during the course of the contagion. They were
requested to give up their bedsteads for the use of
the hospital they willingly offered their beds
also.
Oh Virtue! where wilt thou hide thy self, exclaimed
the philosopher, upon witnessing an act of probity
on the part of a beggar. Would he have been
less surprised at this act of heroic benevolence in
a criminal prison ?
Had this good conduct of the prisoners been
366 B.V. CH.III. PANOPTICON PENITENTIARY.
only a simple suspension of their vices and crimes,
it would have been a great point gained ; but it
extended much further.
" Of all the criminals who have been found
guilty," says Turnbull, "there has not been five
in each hundred, who have been in the prison
before. 5
At New York, although the result has not been
so favourable, it exhibits the good effects of the
system. "During the five years, ending in 1801,"
says Mr Eddy, the principal governor of the Peni
tentiary, in the account rendered to his fellow-
citizens, "of three hundred and forty-nine
prisoners who have been set at liberty at the expi
ration of their sentences, or by pardons, twenty-
nine only have been convicted of new offences ;
and of this twenty-nine, sixteen were foreigners.
Of eighty-six pardoned, eight have been appre
hended for new offences ; and of this eight, five
were foreigners/
It must, however, be remembered, that we may
guard against exaggeration : that of these libe
rated prisoners, many may have expatriated them
selves, and committed crimes in the neighbouring-
States, being unwilling to expose themselves to
the austere imprisonment of New York or Phila
delphia ; for it is a fact, that the risk of death is
less frightful to men of this temper, than laborious
captivity.
The success of these establishments is, without
doubt, owing in great measure to the enlightened
zeal of their founders and inspectors ; but it has
permanent causes in the sobriety and industry
established, and the rewards bestowed for good
conduct.
The rule which has ensured sobriety, has been
the entire exclusion of strong liquors no fermented
B.V.CH.III. PANOPTICON PENITEXTIARY. 367
liquor is allowed, not even small beer. It has
been found more easy to insure abstinence than
moderation. Experience has proved that the
stimulus of strong liquors has only a transitory
effect, and that an abundant and simple nourish
ment, with water for the only drink, fits men for
the performance of continued labours. Many of
those who entered the prison of New York with
constitutions enfeebled by intemperance and
debauchery, have regained, in a short time, under
this regime, their health and vigour.
The Duke de Liancourt and Captain Turnbull
have entered into more precise details. We learn
from them, that since the adoption of this system,
the charge for medicines, which amounted annu
ally to more than twelve hundred dollars, has been
reduced to one hundred and sixty. This fact
affords a still stronger proof of the salubrity of this
prison.
This exposition, in which I have omitted many
favourable circumstances, without suppressing
anything of a contrary nature, is sufficient to show
the superiority of Penitentiaries over the system
of transportation. If the results have been so
advantageous in America, why should they be less
so in England? The nature of man is uniform.
Criminals are not more obstinate in the one place
than the other. The motives which may be em
ployed are equally powerful. The new plan pro
posed by the author of the Panopticon, presents
a sensible improvement upon the American
methods the inspection is more complete the
instruction more extended escape more difficult ;
publicity is increased in every respect ; the dis
tribution of the prisoners, by means of cells and
classes, obviates the inconvenient association
which subsists in the Penitentiary at Philadelphia.
368 B.V. CH.1II. PANOPTICON PENITENTIARY.
But what is worth more than all the rest, is, that
the responsibility of the governor in the Panopti
con system is connected with his personal interest
in such manner, that he cannot neglect one of his
duties, without being the first to suffer; whilst all
the good he does to his prisoners redounds to his
own advantage. Religion and humanity animated
the founders of the American Penitentiaries : will
these generous principles be less powerful when
united with the interests of reputation and fortune?
the two grand securities of every public establish
ment the only ones upon which a politician can
constantly rely the only ones whose operation is
not subject to relaxation the only ones which
always being in accordance with virtue, may
perform its part, and even replace it when it is
wanting.
309
CHAPTER IV.
FELONY.
FELONY is a word of which the signification
seems to have undergone various revolutions. It
seems at first to have been vaguely applied to a
very extensive mode of delinquency, or rather,
for delinquency in general : at a time when the
laws scarce knew of any other species of delin
quency cognizable by fixed rules, than the breach
of a political engagement, and when all political
engagements were comprised in one, that of feudal
obligation. Upon feudal principles, everything
that was possessed by a subject, and was consi
dered as a permanent source of property and
power, was considered as a gift, by the accept
ance of which, the acquirer contracted a loose and
indefinite kind of engagement, the nature of which
was never accurately explained, but was under
stood to be to this effect: that the acceptor should
render certain stipulated services to the donor, and
should in general, refrain from everything that was
prejudicial to his interests. It was this principle
of subjection, in its nature rather moral than
political, which at the first partition of conquered
countries, bound the different ranks of men, by
whatever names distinguished, to each other, as
the Barons to the Prince, the Knights to the
Barons, and the Peasants to the Knights. If then
the acceptor failed in any of these points, if in
u B
370 B.V. CH.IV. FELONY.
any one of his steps he fell from the line which
had been traced for him, and which at that time
was the only line of duty, he was not such a man
as his benefactor took him for, the motive for the
benefaction ceased. He lost his fief, the only
source of his political importance, and with it all
that was worth living for. He was thrust down
among the ignoble and defenceless crowd of needy
retainers, whose persons and precarious properties
were subject to the arbitrary disposal of the hand
that fed them. So striking and impressive a figure
did such a catastrophe make in the imaginations
of men, that the punishment of death, when, in
course of time, it came in various instances to be
superadded to the other, showed itself only in the
light of an appendage.* It came in by custom,
rather than by any regular and positive institution :
it seemed to follow rather as a natural effect of
the impotence to which the inferior was reduced,
than in consequence of any regular exertion of the
public will of the community.
This seems to have been the aspect of the times
at the first dawnings of the feudal polity ; but it
was impossible things should long remain in so
unsettled a state. It is in such times, however,
that we are to look for the origin of a word, which
sometimes as the name of a crime, sometimes as
a punishment, is to be met with in the earliest
memorials that are extant of the feudal law.
Some etymologists, to show they understood
Greek, have derived it from the Greek : if they
had happened to have understood Arabic, they
would have derived it from the Arabic. Sir
Edward Coke, knowing nothing of Greek, but
having a little stock of Latin learning, which he
* Blackst. Com. 95.
B.V. CII.IV. - FELONY. 371
loses no opportunity of displaying, derives it from
fcl, gall. Spelman, who has the good sense to
perceive that the origin of an old northern word is
to be looked for in an old northern language,
rejecting the Greek, and saying nothing of the
Latin, proposes various etymologies. According
to one of them, it is derived from two words, fee,
which, in ancient Anglo-Saxon had, and in modern
English has, a meaning which approaches to that of
property or money ; and Ion, which in modern Ger
man, he says, means price : fee Ion is therefore
pretium feudi. This etymology, the author of the
Commentaries adopts, and justifies by observing,
that it is a common phrase to say, such an act is as
much as your life or estate is worth. But felony, in
mixed Latin, felonia, is a word that imports action.
I should therefore rather be inclined to derive it
from some verb, than from two substantives, which
when put together, and declined in the most
convenient manner, import not any such meaning.
The verb to fall, as well as to fail, which pro
bably was in its origin the same as the other, by
an obvious enough metaphysical extension, is well
known to have acquired the signification of to
offend ; the same figure is adopted in the French,
and probably in every other language.*
In Anglo-Saxon there is such a word as feat Ian, If
the evident root of the English word now in use.
* We say, he fell, as well as he swerved from the line of
duty : he fell from his allegiance. The original sin of man is
called the fall of man. Lord Clarendon says, somewhere, he
fell from his duty and all his former friends. Let him who
standeth, says the Gospel, take heed lest he fall. In Ecclesi
astical Jurisprudence, a heretic relapsed, is one who, having
once been convicted of heresy, falls into the same offence a
second time.
t An is nothing but the common termination of the infinitive
mood.
372 B.V. CH.IV. FELONY.
In German, there is such a word asfaellen, which
has the same signification. This derivation there
fore, which is one of Spelman s, is what seems to
be the most natural. So much for the origin of
the word : not that it is of any consequence
whence it came, so it were but gone.
As the rigours of the feudal polity were relaxed,
and fiefs became permanent and descendible, the
resumption of the fief upon every instance of trivial
delinquency, became less and less of course. A
feudatory might commit an offence that was not a
felony. On the other hand, it was found too, that
for many offences the mere resumption of the feud
was not, by any means, a sufficient punishment ;
for a man might hold different feuds of as many
different persons. The Sovereign, too, interposed
his claim on behalf of himself and the whole com
munity, and exacted punishments for offences
which, to the immediate Lord of the feudatory,
might happen not to be obnoxious. In this way,
for various offences, pecuniary and corporal punish
ments, in various degrees, and even death itself,
came in some instances to be substituted ; in
others, to be superadded by positive laws to that
original indiscriminating punishment, which used
at first to follow from almost every offence. That
punishment remained still inseparably annexed to
all those offences which were marked by the
highest degree of corporal punishment, the punish
ment of death : partly with a view of giving the
Lord an opportunity of ridding himself of a race
of vassals, tainted by an hereditary stain ; partly,
in order to complete the destruction of the delin
quents political as well as natural existence. The
punishment of forfeiture, being the original punish
ment, still continued to give denomination to the
complex mass of punishment of which it now
B.V. CH.1V. FELONY. 373
constituted but a part. The word felony now
came to signify a punishment : viz. the complex
mode of punishment of which that simple mode
of punishment, which anciently stood annexed to
every delinquency a feudatory could incur, was a
main ingredient.
At this period of its history, when the above was
its signification, the word felony was as a part of the
Norman Jurisprudence imported into this country
by the Norman conquerors ; for among the Saxons
there are no traces of its having been in use. At
this period it stood annexed only to a few crimes of
the grossest nature : of a nature, the fittest to strike
the imagination of rude and unreflecting minds,
and these not very heterogeneous. Theft, robbery,
devastation when committed by the ruinous instru
ment of fire, or upon the whole face of a country
with an armed force; these and homicide, the natu
ral consequences of such enterprizes, or of the
spirit of hostility which dictated them, were inclu
ded by it. At this time, the import of the word
felony was not either as the name of a punishment,
or as the name of an offence, as yet immeasureably
extensive. But lawyers, by various subtleties,
went on adding to the mass of punishment, still
keeping to the same name. At the same time,
legislators, compelled by various exigencies, went
on adding to the list of offences, punishable by
the punishment of that name ; till at length it
became the name not of one, but of an incompre
hensible heap of punishments ; nor of one offence
only, but of as many sorts of offences almost as
can be conceived. Tell me now that a man has
committed a felony, I am not a whit the nearer
knowing what is his offence : all I can possibly
learn from it is, what he is to suffer. He may
have committed an offence against individuals,
374 B.V. CH.IV. FELONY.
against a neighbourhood, or against the state.
Under any natural principle of arrangement, upon
any other than that which is governed by the mere
accidental and mutable circumstance of punish
ment, it may be an offence of any class, and
almost of every order of each class. The delin
quents are all huddled together under one name,
and pelted with an indiscriminating volley of
incongruous, and many of them, unavailing
punishments.
Felony, considered as a complex mode of punish
ment, stands at present divided into two kinds :
the one styled Felony without benefit of Clergy, or
in a shorter way, Felony without Clergy, or as cap
ital punishment is one ingredient in it, Capital
Felony; the other, Felony within benefit of Clergy,
Felony within Clergy, or Clergyable Felony. The
first may be styled the greater ; the latter, the
lesser felony. There are other punishments to
which these are more analogous in quality, as well
as in magnitude, than the one of them is to the
other such is the confusion introduced by a blind
practice, and as the consequence of that practice,
an inapposite and ill-digested nomenclature.
How punishments so widely different came to
be characterized in the first place by the same
generic name, and thence by specific names, thus
uncouth and inexpressive, shall be explained by
and by, after we have analysed and laid open the
contents of the greater felony, of which the other
is but an off-set, detached from the main root.
HISTORY OF THE BENEFIT OF CLERGY.
The Christian religion, ere yet it had gained
any settled footing in the state, had given birth to
an order of men, who laid claim to a large and
B.V. CH.IV. FELONY. 375
indefinite share in the disposal of that remote, but
>undJess mass of pains and pleasures, which it
was one mam business of that religion to announce
s claim, m proportion as it was acquiesced in
ive them power: for what is power over men
: the faculty of contributing in some way or
1 to their happiness or misery? This power
i proportion as they obtained it, it became their
endeavour to convert, (as it is in the nature of man
to endeavour to convert all power) into a means of
Interest ? **? " ^ ^ interest F ^> the
interest as opposed ^ ler whicl \ ? vas a private
community at large ^ re P^ 1 ^ one of the
of that order. In this sys 6 ^ l t | ie ., mdl ^ duals
few perhaps had their eyes open ;Dirt ma?fy mbrc a
probably acted under the sincere persuasion, that
the advancement of their order above that of
others, was beneficial to the community at large.
This power, in its progress to those ends, would
naturally seek the depression, and by degrees the
overthrow of the political power, as of any other
that opposed it. These operations, carried on by
an indefinite multitude of persons, but all tending
to the same end, wore the appearance of being
carried on in concert, as if a formal plan had been
proposed and unanimously embraced by the whole
Clergy, to subdue the whole body of the Laity :
whereas, in fact, no such plan was ever universally
concerted and avowed, as in truth, there needed
none. The means were obvious, the end was one
and the same. There was no fear of clashing.
Each succeeding operator took up the work where
his predecessor had left off, and carried it on just
so far as interest prompted and opportunity
allowed.
In pursuance of this universal plan, not con-
376 B.V. CH.1V. FELONY.
certed, but surer than if it had been the result of
concert, were those exemptions laid claim to which,
by a long and whimsical concatination of causes
and effects, were the means of breaking down the
punishment of felony into the two species of it
that now subsist.
The persons of these favoured mortals, honoured
as they pretended they were by a more immediate
intercourse with the divinity, and employed as
they were incessantly in managing the most impor
tant, and indeed, only important concerns of man
kind, were of course to be accounted sacred ; a
word of loose and therefore the more convenient
signification, importing at bottom, nothing more
than that the subject to which it was attributed,
was or was not to be accounted an object of distant
awe and terror. They were therefore not to be
judged by profane judgments, sentenced by pro
fane mouths, or touched, in any manner that was
unpleasant to them, by profane hands. The places
wherein that mysterious intercourse was carried
on, imbibed the essence of this mysterious quality.
Stones when put together in a certain form became
sacred too. Earth, within a certain distance round
about those stones, became sacred too. Hence
the privilege of sanctuary. In short, the whole
of the material as well as intellectual globe became
divided into sacred and profane ; of which, so
much as was sacred was either composed of them
selves, or become subjected to their power. The
rest of it lay destitute of these invaluable privi
leges, and as the name imports, tainted with a
note of infamy.
I pass rapidly over the progress of their claim
of exemption from profane judicature : the reader
will find it ably and elegantly delineated in Sir
W. Blackstone s Commentaries.
13. V. CH.1V. FELONY. 37?
As to the causes, those which come under the
denomination of felonies, are the only ones with
which at present we have to do. Confining our
consideration therefore to these causes ; as to per
sons, it was first claimed, one may suppose, for
those of their own order, by degrees, for as many
as they should think fit for that particular purpose
to recognise as belonging to that order. By
degrees, the patience of profane judges was put
to such a stretch, that it could hold no longer ;
and they seem to have been provoked to a general
disallowance of those exceptions which had swelled
till they had swallowed up in a manner the whole
rule. This sudden and violent reformation, wear
ing the appearance of an abuse, the clergy had
influence enough in the legislature to procure an
Act* to put a stop to it. By this Act it was pro
vided, that all manner of Clerks, as well secular
as religious, which shall be from henceforth con
vict before the secular Justices, for any treasons
or felonies touching other persons than the King
himself, or his Royal Majesty, shall from hence
forth freely have and enjoy the privilege of Holy
Church, and shall be, without any impeachment^
or delay, delivered to the Ordinaries ]: demanding
them.
This Statute, one should have thought, would
have been sufficiently explicit on the one hand, to
secure the exemption to all persons in clerical
orders, so, on the other hand, to exclude all per
sons not possessed of that qualification. To prove
a person entitled to the exemption, the obvious
and only conclusive evidence was, the instrument
of ordination. But the different ranks of persons
* 25 Edw III. Stat. 3, c. 4.
f It should be hindrance: the French original is empeschcmcnt.
t Meaning the Bishop, or other Ecclesiastical superior.
378 B.V. CH.IV. FELONY.
who were all comprised under the common name
of Clerks, and as such, partook more or less of
the sacred character, were numerous : and some
of these seem to have been admitted to their offi
ces without any written instrument of ordination.
Whether this omission was continued on purpose
to let in a looser method of evidence, or whether
it was accidental, so it is that the clergy had the
address to get the production of that written evi
dence dispensed with. In the room of it, they
had the address to prevail on the courts to admit
of another criterion, which, ridiculous as it may
seem at this time of day, was not then altogether
so incompetent. " Orders," they said, or might
have said, "may be forged, or may be fabricated
for the purpose ; but as a proof that the man
really is of our sacred order, you shall have a
proof that can neither be forged nor fabricated ;
he shall read as we do." The book was probably
at first a Latin book : the Bible or some other
book made use of in Church service. At that
time, few who were not clergymen could read at
all, and still fewer could read Latin. And the
Judges, if they happened to see through the cheat,
might in some instances, perhaps, not be sorry to
connive at it, in favour of a man possessed of so
rare and valuable a qualification. But one book
was easily substituted for another : a man might
easily be tutored so as to get by rote a small part
of a particular book ; and as society advanced to
maturity, learning became more and more diffused.
We need not wonder therefore, if by the time of
Henry Vllth, it was found that as many laymen as
divines were admitted to the ecclesiastical privi
lege. I should suppose a great many more, for
there is something in the ecclesiastical function,
that in the worst of times will render them less
B.V. CH.IV. FELONY. 379
liable than others of the same rank and fortune,
to fall into open and palpable enormities. A
Statute therefore* was made to apply a remedy
to this abuse ; and what would one imagine was
that remedy? To oblige persons, claiming the
benefit of Clergy, to produce their orders ? No ;
but to provide, that persons claiming it, and not
being in orders, should not be allowed it more
than once ; and that all persons who had once
been allowed it, should have a mark set upon
them, whereby they might be known. Real Cler
gymen, Clergymen who had orders to produce,
were by an express provision of the Statute, enti
tled to claim it totics quotlcs, as often as they should
have need, which privilege they have still.
When a felon was admitted to his clergy, he
was not absolutely set free, but delivered to the
Ordinary. The great point then was, if we may
believe Lay Judges, who it is to be confessed are
not altogether disinterested witnesses, to prove
him innocent, for this tended to discredit the pro
fane tribunal. This business of proving him inno
cent, was called his purgation. If this were
impracticable, he was put to penance: that -is,
subjected to such corporal punishment as the
Ordinary thought proper to inflict upon him,
which we may imagine, was not very severe.
Thus it was that the clergy contrived to bind even
the most stubborn spirits under the yoke of their
dominion ; the honest and credulous by their
fears ; the profligate, though incredulous, by their
hopes.
Circumstances, however, are not wanting, which
tend pretty strongly to make it probable, that
when once a man got into the hands of the clergy,
* 4 Hen. VII. c. 13.
380 B.V. CH.IV. FELONY.
he almost always stood the purging, and proved
innocent ; and it is what the Lay Judges seem to
have taken for granted would be the case of course.
When therefore they made a point of making the
offender suffer the train of punishments that stood
annexed to acknowledged guilt, (death excepted,
which was too much for them to attempt) they
knew no other way of compassing it, than by
insisting on his not Joeing admitted to make pur
gation. These punishments, the imprisonment
excepted, consisted altogether of forfeitures and
civil disabilities; penalties with which the Eccle
siastical Superior had nothing to do, and which it
lay altogether within the province of the Temporal
Judge to enforce. One should have thought then
it would have been a much less apparent stretch
of authority in the latter, to give effect to the pro
ceedings of his own judicature, than to lay a
restraint on the Ecclesiastical Judge in the exercise
of what was acknowledged to be his. But it
were too much to expect anything like consistency
in the proceedings of those rude ages. The whole
contest between the Temporal Judge and the Spi
ritual was, an irregular scramble, the result of which
was perpetually varying, according to the temper
of individuals and the circumstances of the time.
By the time of Queen Elizabeth it came
to be generally understood that purgation, which
originally meant trial, was synonymous to acquit
tal.* This is so true, that when by a Statute of
* It is amusing enough to observe the continual struggle
between the Spiritual and the Carnal Judge, as described in
Staundford, title Clergy. It seems to have been a continual
game of leap-frog, in which sometimes spirit, sometimes flesh
was uppermost, (a)
A man, however, was not always so very kindly dealt with:
(a) Tale of a Tub.
B.V. CH.IV. FELONY. 381
that reign,* purgation came to be abolished, the
legislature, instead of appointing a trial, appointed
punishment. Persons claiming the benefit of
Clergy, instead of being delivered to the Ordinary
to make purgation, were now, after being burnt in
the hand, to be forthwith delivered out of prison,
unless the Temporal Judge should think proper to
sentence them to imprisonment, which he was now
for the first time empowered to do for any time
not exceeding a year.
It will here be asked what was done with the
pecuniary punishments, the forfeitures, the cor
ruption of blood, and the disabilities? The answer
is, nothing at all they were never thought of.
However, by one means or other, there is now an
end of them. The legislator neither then nor
since has ever opened his mouth upon the subject.
But the Judge, drawing an argument from that
silence, has opened his and construed them away.
This bold interpretation is a farther proof how
entirely the ideas of purgation had become iden
tified with that of acquittal. When a man was
admitted to make purgation, he was acquitted :
he fared better or worse, according as he happened to be in
favour with the Church. If they happened not to like him,
although he had not been tried when delivered to them, they
would not admit him to his purgation, but kept him in hard
durance without trial. The Temporal Courts were then obliged
to drive them on to trial. (a) If he was a favourite, although
convicted, no guest could be better entertained : they used to
cram him at both ends. This, a good Archbishop admits,
who, being driven by the Parliament to make an ordinance to
remedy this mischief, appoints, that in certain cases, they shall
be dieted in a manner he prescribes ; speaking all the while
in much worse terms of the Lay Judges than of the malefactors,
who met with this reception from their friends.
* 18 Eliz. c.7.
(a) Staundford Clergy, c. 48. Bracton.
382 B.V. CH.IV. FELONY.
by that means he was discharged from these pecu
niary penalties. Now then that the legislature
has appointed that in the room of going free, the
delinquent may now be punished by a slight
punishment, and that not of course, but only in
case the Judges should think fit to order it of their
own accord, we cannot, said the Judges, suppose
that it meant to subject him to a set of punish
ments so much severer than those it has named.
Therefore, as to all but these, coming in place of
an acquittal, we must look upon it as a pardon.
Having by this chain of reasoning got hold of the
word pardon, they went on applying it to other
purposes in a very absurd manner; but as we have
already had occasion to observe, with a beneficial
effect.
One would imagine that being to suffer nothing
(what has been mentioned only excepted), first,
because he was acquitted, next, because he was
pardoned, there was an end of all pecuniary
penalties, of the one species of forfeiture as well
as the other. This, however, neither was nor is
the case. A man did then and does still continue
subject to the forfeiture of his personal estate.
The reason of this is of true legal texture, and
altogether characteristic of ancient jurisprudence.
Forfeiture of real estate is not to take place till
after judgment; forfeiture of personal estate,
without the least shadow of a reason for the diffe
rence, is to take place before judgment : to wit,
upon conviction. Now, ever since the days of
Henry Vlth, it has not been the way to admit a
man to plead his Clergy till after conviction.
Now, then, if a man comes and pleads his Clergy,
whatever goods he had the King has got them.
This being the case, having had your Clergy, you
are innocent, or, what comes to the same thing,
B.V. CH.IV. FELONY. 383
you are forgiven. All this is very true ; but as
to your money, the King, you hear, has got it,
and when the King has got hold of a man s money,
with title or without title, such is his royal nature,
he cannot bear to part with it. For the King can
do no man wrong, and the Law is the quintessence
of reason. To make all this clear, let it be ob
served, there is a kind of electrical virtue in royal
fingers, which attracts to it light substances, such
as the moveables and reputed moveables of other
men ; there is, moreover, a certain glutinous or
viscous quality, which detains them when they
are got there.
Such are the grounds upon which the forfeiture
of personal estate, in cases of clergyable felony,
still continues to subsist.
This Act gave the finishing stroke to the abu
sive jurisdiction of the Clergy. The still more
abusive exemption remained still, but so changed
and depreciated by a lavish participation of it with
the laity, that its pristine dignity and value was
almost entirely obliterated. By the turn they had
given to it, it was originally an instrument of un
limited dominion over others ; it was now sunk
into a bare protection, and that no longer an
exclusive one for themselves.
At last, came the Statute of Queen Ann,* which
gives the benefit of Clergy to all men whatsoever,
whether they can read or cannot. This, together
with a Statute of the preceding reign, t which had
already given the same benefit to all women, gave
quite a new import to the phrase. In words, it
confirmed and extended the abusive privilege ; in
reality, it abolished it. It put the illiterate alto
gether upon a footing with the literate ; providing,
* 5 Ann. c. 6. f 3 & 4 W. & M. c. 9.
384 B.V. CH.IV. FELONY.
at the same time, that in the case of the offences
to which it extended, both classes alike should
suffer, not the punishment which the unprivileged,
but that which the privileged had been used to
suffer before.
Since then, to allow the benefit of Clergy to
any offence, is to punish all persons who shall
have committed that offence, in the same manner
as lettered persons were punished before. It is
to punish in a certain manner all persons for that
offence. To take away this benefit is to punish
in a certain other manner, much more severe, all
persons for that offence. The difference between
the having it and the taking it away, is now the
difference between a greater and a lesser degree
of punishment. The difference formerly was the
allowing, or not allowing, an oppressive and
irrational exemption.
But these entangled and crooked operations
have been attended with a variety of mischiefs,
which are not by any means-cured as yet, and of
which scarce anything less than a total revision of
the Criminal Law can work a total cure. Such a
veil of darkness, such a cob- web work of sophistry,
has been thrown over the face of Penal Jurispru
dence, that its lineaments can scarcely be laid
open to public view but with great difficulty, and
with perpetual danger of mischief.
Of the mischief and confusion that has thus
been produced, I will mention one instance, which
will probably be thought enough.
In a statute of Henry Vlllth,* by a strange
caprice of the legislature, the benefit of Clergy
was taken away in the lump from all offences
whatever, which should happen to be committed
* 28 Hen. VIII. c. 15.
B . V . 1 1 1 1 V .- F K LO N Y . 385
on the high seas. He might as well have said, or
in such a county, or by men \vhose hair should be
of such a colour. In point of expediency, of a pro
vision like this, one knows not what to make.
Considered with reference to other parts of the
legal system, it is reasonable, as doing something
towards abolishing an unreasonable distinction.
Considered in the same point of view, it is unrea
sonable, as making that abolition no more than a
partial one, and grounding it, as far as it went, on
a circumstance totally unconnected with the mis-
chievousness of the offence. Considered by itself,
it is again unreasonable, as tending to subject to
the punishment of death for a great many offences,
a great many persons for whom a less punishment
might suffice.
In point of fact, however, what the legislature
meant by it, is clear enough : he meant, that
all men, without exception, privileged persons as
well as others, should sutler death and so forth,
who should be guilty of any kind of felonies upon
the high seas, instead of their being made, some
of them, to sutler death, others a punishment
beyond comparison less severe. Would any one
imagine what has been the effect of this provision?
The effect of it has been, that these privileged
persons, instead of suffering death, have suffered
no punishment at all. Yes, absolutely no punish
ment ; not even that slight degree of punishment
to which they before were subject. Now the case
is, that at present, if one may be indulged in a
solecism established by the legislature, all persons
are privileged. So that now, all persons who may
think proper to commit clergyable felonies on the
high seas, are absolutely dispunishable. This
situation of things, in itself, is not altogether as it
ought to be ; but the means whereby it has been
c c
386 B.V. CH.IV. FELONY.
brought about, are still worse. When a man is
indicted of a clergyable offence within that juris
diction, let his guilt be ever so plainly proved, the
constant course is, for the Judge to direct the Jury
to acquit him.* The man is proved to be guilty
in such a manner, that no one can make a doubt
about it. No matter; the Judges direct the Jury
to say upon their oaths that he is not guilty.
In the Ecclesiastical tribunal, we have above
been speaking of, things were so ordered, that
according to the author of the Commentaries,
"felonious clerks" were not constantly, but
" almost constantly" acquitted. I do beseech the
reader to turn to that book, and observe in what
energetic terms (partly his own, partly adopting
what had been said on the same subject by Judge
Hobart) the learned author has chosen to speak of
this unjustifiable practice. f "Vast complication
of perjury and subornation of perjury solemn
farce mock trial good Bishop scene of wicked
ness scandalous prostitution of oaths and forms
of justice vain and impious ceremony most
abandoned perjury." Such are the terms he uses,
to the reader it is left to make an application of
them.
FELONY WITHOUT BENEFIT OF CLERGY.
As to felony without benefit of Clergy, I will,
in the first place, state the ingredients of which
this mode of punishment is compounded.
Of punishments included under the title of
felony without benefit of Clergy, we must distin
guish, in the first place, such as are made to bear
* 4 Comm. c. 28. Foster, 288. Moor, 756. f Ib.
B.V.CU.IV. rtLONY. 387
upon the proper object punishments in personam
propriam and in the second place, such as are
thrown upon the innocent, punishments in persona/it
alicnaui.
Of punishments in personam propriam it includes
the following :
I. A total forfeiture of goods and chattels,
whether in possession or in action at the time of
the forfeiture taking place. It is a sweeping
punishment of the pecuniary kind. It takes place
immediately upon conviction : that is, upon a
man s being found guilty, and does not wait for
judgment, that is, for sentence being pronounced
upon him.
II. Forfeiture of lands and tenements. This
also is a sweeping punishment of the pecuniary
kind. It does not take place till after judgment.
This and the other forfeiture between them include
the whole of a man s property, whether in posses
sion or in action at the time of the forfeiture taking
O
place. If he does not lose it by the one, he loses
it by the other.
III. The corporal punishment of imprisonment
till such time as the conclusive punishment is exe
cuted upon him. The length of it depends partly
on the Judge, partly on the King.
IV. The disability to bring any kind of suit.
This operates as a punishment in such cases only
in which a long interval, as sometimes happens,
intervenes between the sentence and the actual
infliction of the ultimate punishment.
V. The corporal punishment of death : viz.
simple death by hanging. As this punishment in
general puts a speedy period to all the rest, the
dwelling upon the effect of any other, is what
may, at first sight, appear useless ; but this is not
absolutely the case. For the execution of this
388 B.V. CH.IV. FELONY.
punishment may, at the pleasure of the King, be
suspended for any length of time ; and in some
instances, has actually been suspended for many
years.*
Thus much for punishment in propriam personam.
Punishments in alienam personam included under
it, are the following ; some of them are instances
of transitive, others of merely random punishment.
I. His heirs general, that is, that person or per
sons of his kindred, who stand next to him, and
so to one another in the order of succession to real
property unentailed, forfeit all property of that
denomination which he had enjoyed, and which
without an express appointment of his to the con
trary, they would have been entitled to from him.
This results as a consequence of the doctrine of
corruption of blood. This is an instant forfeiture:
it is a sweeping punishment of the pecuniary kind
upon the heir. It may amount to a forfeiture total
or partial of all the immoveable property the heir
would be worth, or to no forfeiture at all. If, pre
viously to the commission of the offence the
offender had settled upon his heir apparent the
whole or any part of what property he had of the
kind in question, this the heir will not be deprived
of.
II. His heir, as before, forfeits his hope of suc
cession to all such real property as he must make
title to through the delinquent, as standing before
him in the order of consanguinity to the person
last seised. This is a remote contingent forfeiture.
Another pecuniary punishment of the sweeping
* Sir Walter Raleigh was kept for many years with the halter
about his neck : he had the command given him of an expedi
tion ; went to America, where he committed piracies on the
Spaniards; came back again ; and was hanged at last for the
original offence.
B.V. CH.IV. FELONY.
kind. Iii this the uncertainty is still greater than
in the former case.
III. Any creditors of his who have had real
security for their debts, forfeit such security, in
case of its having been granted to them subse
quently to the time of the offence committed.
This, where it takes place, is a fixed punishment
of the pecuniary kind. It is uncertain as to the
person, but if there be a person on whom it falls,
it is certain as to the event.
IV. Any persons who may have purchased any
part of his real property, forfeit such property, in
case of this purchase having been made by them
subsequently to the time of the offence. This,
again, is a fixed punishment of the pecuniary
kind. It is uncertain whether it shall fall upon
any person, because it is uncertain whether there
be a person so circumstanced, but if there be, it
is certain as to the event of its falling.
V. Any persons who hold lands or tenements of
him under a rent, are obliged to pay over again to
the person on whom the forfeiture devolves, what
ever they may have paid to the delinquent subse
quently to the time of the offence.
These four last denominations of person are
made to suffer in virtue of the doctrine of back-
relation. According to legal notions, it is the
delinquent that suffers, by the forfeiture being
made to relate back to the time of the offence : as
if it were a new suffering to a man to be made to
have parted with what he had already parted with
of his own accord. In plain English, it is the
people themselves the tenants, purchasers, and
creditors that suffer. It is they who forfeit, and
not he.
Again, by virtue of the forfeiture of what is
390 B.V. CH.IV. FELONY.
called his personal property, the following deno
minations of persons are made to surfer :
I. His wife : by being deprived of whatever
she would have been entitled to under his will, or
under the law of distributions.
II. His children, or others next of kin : by losing
what they might, in the same manner, have become
entitled to.
III. His creditors : by losing all claim upon
his personal estate. By this forfeiture, added to
what takes place in the case of real estate, all his
creditors whatever are defrauded ; such only ex-
cepted as may have been fortunate enough to have
obtained a real security previous to the commission
of the offence.
We now come to Felony within Clergy. The
mass of punishments included within this title,
are much less various as well as less severe.
Of punishments in propriam personam, it includes
only the first and third of those which are included
under the other species of felony.
In the room of the 5th and last punishment, the
punishment of death, there is one that takes place,
or rather is said to take place, of course. I mean,
marking in the hand :* others there are, which,
besides the former, take place optionally, at the
discretion of the Judge: conjunctively, with
respect to the three former; disjunctively, with
respect to one another.
This punishment of marking, is now become a
farce. It is supposed to be inflicted in open court,
immediately after the convict, in order to exempt
himself from the punishment of the other felony,
has been made: if a woman, to plead the statute;
* 4 Hen. VII. c. 13.
B.V. CH.IV. FELONY. 391
if a man, to tell the solemn lie that he is a clerk.
The mark to be inflicted is, according to the sta
tute, to be the letter T-, unless the offence be mur
der, in which case it is to be an M ; murder, at
that time, not as yet having been taken out of the
benefit of Clergy ; as it has, however, since, the
mark ought now to be that of a T in all cases.
The part to be marked is the brawn of the left
thumb, so that if a man happens to have lost his
left thumb, he cannot be marked at all ; or, if
afterwards he chooses to cut it off, he may prevent
its answering the purpose it was meant to answer,
that of distinguishing him from other men.
The instrument originally employed was a heated
iron with a stamp upon it of the shape of the letter
to be marked. To the Judges of that time, this
was the only expedient that occurred for marking
upon the human skin, such a mark as should be
indelible. At present the practice is to apply the
iron, but it is always cold : this is what is called
burning with a cold iron ; that is burning with an
iron that does not burn; in consequence no mark
at all is made. The Judge presides at this solemn
farce ; by no one is it complained of ; by many, it
is approved ; it is mildness, humanity : it is true
that the law is eluded, and turned into ridicule :
but the Judge spares himself the pain of hearing the
cries of a man, to whose flesh a red hot iron is
applied. It may be asked, why do not the Judges
propose that the law should be made conformable
to the practice ? I cannot tell.
The Judge that first disregarded the Statute
was guilty of the assumption of illegal power : he
who should now have the courage to obey it, might
now affix the prescribed mark without putting the
delinquent to any considerable pain.*
* The statute directs that the convict shall be " marked :" the
392 H.V.C.1V. FELONV.
The other punishment, which in all cases of
felony within Clergy, may, at the discretion of the
Judge, be superadded or not to those which we
have seen, are those of imprisonment and trans
portation.
For the second offence of a clergyable felony,
capital felony is the punishment.*
Clerks in orders are alone exempted r|~ peers
are not : women are expressly subjected to it.
It is certainly a distinction highly honourable to the
clergy that they may go on pilfering, while other
people are hanged for it.
Why a man having been punished for one act of
delinquency, should be punished more than
ordinarily for a second act of the same species of
delinquency, or even for any other offence of the
same species of delinquency, there is at least an
obvious, if not a conclusive reason. But why
when a nan has been punished by a certain mode
of punishment, and then commits an offence as
different as any offence can be from the former,
the punishment for this second offence is, because
it happens to be the same with that for the first,
to be changed into a punishment altogether
different, and beyond comparison more penal, is
what it will not, I believe, be easy to say. Is it
because the first mode of punishment having been
tried upon a man, the next above it, in point of
severity, is that of capital felony ? That is not the
mode of marking is left altogether to the Judge. The author of
the Commentaries (4 Comm. p. 367, ed. 1809) " burnt with a
hot iron." It is plain by this that he had never read the statute :
for the statute, which is a very short one, says not a syllable
about burning, or about a hot iron.
* 4 Hen. Vllth, c. 13.
f By 4 Hen. Vllth, c. 13. repealed in effect quo ad hoc, by
28 Hen. Vllth, c. 1, and 32 Hen. VHIth, c. 3 : and revived in
effect quoad hoc by 1 Ed. Vltli, c. 12. p. 10.
13. V. C.IV. FELONY. 393
case : for praemunire is greatly more penal than
clergyable felony. I mention this as being im
possible to justify, not as being difficult to account
ibr, since nothing better could consistently be
expected from the discernment of those early times.
There is one thing which a clergyable felon does
not forfeit, and which every other delinquent would
forfeit for the most venial peccadillo and that is
reputation. I mean that special share of negative
reputation which consistsinaman snotbeinglooked
upon as having been guilty of such an offence.
This share of reputation, the law, in the single
instance of clergyable felony, protects a delinquent,
in so far forth as it is in the power of law, by brute
violence, to counteract the force of the most rational
and salutary propensities. If a man has stolen
twelve-pence, and been convicted of it, call him a
thief and welcome. But if he had stolen but
eleven-pence-halfpenny, and been convicted of it,
and punished as a felon, call him a thief and the law
will punish you. This has been solemnly adjudged.
I say convicted and punished as a felon : for if he
has not been convicted of it, in virtue of the general
rule in case of verbal defamation, you may call him
so if you can prove it ; but when the law, by a
solemn and exemplary act has put the matter out
of doubt, then you must not mention it. Would
any one suspect the reason ? It is because the
statute which allows the benefit of clergy operates
as a pardon. It has the virtue to make that not to
have been done which has been done : and it was
accordingly observed, that a man could no more
call another thief who had been punished for it in
this way (thief say they in the present time) than say
he hath a shameful disease when he had had it, and
has been cured of it.*
* Hobart 81.
394 B.V. CH.IV. FELONY.
It is there also said, with somewhat more colour
of reason, though in despite of the last mentioned
rule, " that there is no necessity or use of slan
derous words to be allowed to ignorants," and that
though the arresting of a pardoned felon, by one
who knows not of the pardon, may be justifiable,
because this is in " advancement of justice ; yet so
it is not to call him thief, because that is neither
necessary, nor advanceth nor tends to justice." He
who said this knew not, or did not choose to know,
how mighty is the force and how salutary the
influence of the moral sanction : how much it con
tributes to support, and in what a number of impor
tant instances it serves to control the caprices and
supply the defects of the political. It was perhaps
Sir Edward Coke : a man who from principle was
a determined enemy, though from ill humour, upon
occasion an inconsistent and unsteady friend to
political liberty : who in his favourite case, de
libdlis famosit, has destroyed, as far as was in his
power to destroy, the safeguard of all other liberties,
that of the press : proscribing all criticism of public
acts ; silencing all history ; and vying in the extent
of his anathemas with the extravagance of the most
jealous of the Roman Emperors.
395
CHAPTER V.
OF PH.EMUNIUE.
THE punishment of Prsemunire* consists in the
being " put out of the King s protection," and,
" in the forfeiture of lands and tenements, goods
and chattels ; " but such is the uncertainty of
English law, that some add to the above, imprison
ment during the King s pleasure, and others say
for life. Sir Edward Coke is for adding loss of
credibility ; he might as well have added loss of
ears ; but I do not find that this conceit has been
taken up by anybody else.
The offences to which this punishment has been
applied, are as heterogenous as any that can be
imagined. The offence to which it was first ap
plied, was an offence against Government; since
that, besides a multitude of other offences against
Government, it has been applied to various offences
against the property, against the personal liberty
of individuals, and against trade If
1 This word, from being the name of nothing at all, first
became the name of a writ, then the name of a punishment,
and from thence, as was natural, the name of an offence : to
wit, of as many offences as were punishable by that punishment.
t See a list of these offences in Blackstone s Commentaries.
So difficult is it for anyone to ascertain what the law is upon any
subject, that though this punishment was adopted in the Re
gency, Act 5 Geo. III. c. 27. which was passed many years
before the 4th vol. of the Commentaries was printed. This Act
was not enumerated in that list.
B.V. CH.V. OF PR^MUNIRE.
What it is that in such a variety of laws should
have tempted the legislature, instead of the known
and ordinary names of punishment, to devise a
new and unexpressive name to which no meaning
whatever could be annexed, without rummaging
over a confused parcel of old French statutes, is
not easy to assign. There is nothing gained by it
in any way, not in point of brevity, for in one of
the statutes in which it is described with the most
conciseness, I find more words are taken up by
this uncouth description, than would be by the
plain one : there is nothing gained by it in point
of precision, for the word has no signification
whatever, but by reference to the words of the
old statute, and consequently cannot be more
precise than they are.
The only recommendation I can find for it is,
that it is a Latin word: added to the notion, per
haps, that, as being less intelligible than most
other names of punishments, it might be more
tremendous.
If this has been the design, it has been in some
measure answered terrible indeed is the name of
Prsemunire. It is become a kind of bug-bear, in
which shape it has descended even among the
lowest mob. It is used as synonimous with a
scrape : not that the sort of persons last mentioned
have any much clearer idea of the particular sort
of scrape, than those have who bring others into it
by solemn acts of legislation.
397
CHAPTER VI.
OUTLAWRY,
THE punishment known in practice by the name
of Outlawry, consists of the following ingredients:
I. Forensic disability, which may be called
simple outlawry.
II. Forfeiture of personal estate.
III. Forfeiture of the growing profits of the
real estate.
IV. Imprisonment, c.
This is the punishment inflicted for the offence
of absconding from justice in all cases, except
where the punishment for the principal offence
amounts to felony : in this case, a man against
whom a sentence of outlawry is pronounced, is
punished as if he had been convicted of the prin
cipal offence.
As the offence of absconding is a chronical
offence, the punishment applied to it should be a
chronical punishment, such an one as being made
to cease upon the cessation of the offence, may
operate only as an instrument of compulsion. All
these punishments are capable of being made so ;
but none are so upon the face of them. None
were so originally. They are by this time, how
ever, rendered so in great measure by modern
practice, which has corrected the inordinate severity
of the original institution.
This punishment applies in most cases, but not
398 B.V. CH.VI. OUTLAWRY*.
in all cases : in all cases where the prosecution for
the original offence was in the criminal form, that
is, in other words, in all criminal suits : it applies
in most, but not in all civil suits. In the same
civil suit, it applies or does not apply, according
as the suit happens to be commenced before one
court or another. In the same suit, and that
carried on in the same court, it does or does not
apply according as the suit happens to have been
commenced by one kind of jargon or another. All
this without the least relation to the merits.
The punishment of forensic disabilities is applied
to a multitude of offences : namely, to all those
which are punished either by capital felony, or
praemunire, or excommunication. In felony, it is
useless, because the effect of it is merged in the
punishment of death ; in praemunire, it is justi
fiable, in as far as the punishment of total and per
petual impoverishment, is an eligible mode of
punishment, for of this it makes a necessary part.
In excommunication, it is ineligible, on account of
its inequality. To make it answer in an equable
manner the purpose of impoverishment, is imprac
ticable, for want of the punishment of forfeiture,
of which it can come in only as an appendage.
Taking it by itself, and laying aside what is
necessary to make it answer the purpose of impo
verishment, it is superfluous when added to the
punishment of imprisonment.
Whatever may be the offences cognizable in the
Ecclesiastical Court, either corporal punishment
is enough for them without pecuniary, or it is not.
If it be enough, simple outlawry in addition to it
is too much ; if not, it is too little. All this is
upon the supposition that the delinquent is forth
coming for the purpose of undergoing imprisonment.
When a man absconds and has no property in
B.V. CII.VI. OUTLAWRY. 399
possession, or none that is sufficient to answer the
demand upon him, in this case, and in this only,
the punishment of simple outlawry is expedient.
Why ? not because it is eligible in itself, but
because it is the only one the case admits of.
When a man has no visible property in his own
country, and has made his escape into another,
generally speaking, his own country has no hold
of him. This may happen, suppose in nine instan-
ces out of ten ; but in the tenth, it may happen
that he may have a debt due to him, which he may
want the assistance of the laws of his own country
to recover. If this debt be more in value to him
than what is equivalent to the punishment he would
be likely to suffer for the original offence which
made him fly, he will return and submit to justice.
The punishment of simple outlawry in this case
will answer its purpose. It is eligible, therefore, in
this case, because it has some chance of compassing
its end, and no other punishment has any.*
* An anecdote given us by Selden, in his Table Talk, (a)
may serve very well to illustrate the influence this mode of
punishment may have over a man who is out of the reach of
every other. In the reign of James 1st, an English merchant
had a demand upon the King of Spain, which he could not get
the King to satisfy. The merchant had already brought his
action, and Selden, wh o was his Counsel, advised him to pro
ceed to Outlawry. Writ after writ was sent to the Sheriff to
take his Majesty, and have his body before the Justices at West
minster. His Majesty was not to be found. Great outcry, as
is usual, was made after him upon this in sundry ale-houses.
His Majesty did not happen to be at any of the ale-houses. He
was accordingly proclaimed an outlaw ; and a wolf s head, in
due form of law, was clapt upon his shoulders, (6) so that any
body might lay hold of him, and put him into jail, that had a
() Title Law.
(b) Caput Luplnum. C. Litt. 128.1). Lamb. Leg. T, ch. 138. Fleta.
L. 1. c.27. Bract. L. 5. Jbl.421. Britt. fol.20. Mirror, c. 4. Defaults
Punishable.
400 B.V. CH.VI. OUTLAWRY.
ADVANTAGES AND DISADVANTAGES OF
FORFEITURE OF PROTECTION.
To this mode of punishment, the objection of
inequality applies with peculiar force. The fund
out of which a man who has a fund of his own
subsists, is either his labour, or his property. If
he has property, it consists either in immoveables,
or in moveables. If in immoveables, it is either
in his own hands, or in those of other persons ; if
in moveables, it is either in public hands, or in
private : if in private, either in his own hands, or
in those of other persons.
A man who subsists by his labour, is in general
scarcely at all affected by this punishment. He
receives his pay, if not before he does his work, at
least as soon as a small quantity of it is done.
A man whose fund of subsistence consists in
immoveable property, is very little affected by this
punishment, if that property is in his own hands.
The utmost inconvenience it can subject him to, is
the obliging him to deal for ready money. If his
property is in the funds, he is not at all affected .
There seems no reason to suppose that those who
have the management of those funds, would refuse
a man his dividend on the ground of any such dis
ability. They would have no interest in such a
refusal ; and the importance of keeping public
mind for it. (a) The case was, his Majesty happened at that
time to have demands upon several merchants in England, for
which demands, so long as he continued under judgment of
outlawry, he could not have his remedy. Upon this considera
tion, his Ambassador, Gondamar, submitted and paid the money;
upon which, the wolf s head was taken off, and the King s head
put in its place.
(a) Antiently, when a man had a wolf s head upon his shoulders, he might be
killed by anybody. Eut this was altered in Edw. III. s time. Ste C. Lilt.
B.V. CII.VI. OUTLAWRY. 4()1
credit, would probably be a sufficient motive to
keep them in this instance from departing from the
general engagement.
If a man s property consists in moveable pro
perty which is in his own hands, for instance,
stock in trade, it affects him indeed, but not very
deeply. The utmost it can do, is to oblige him to
deal for ready money : to preclude him from sel
ling upon credit. It does not preclude him from
buying upon credit, since, though others are not
amenable to him, he is to others.
It is only where a man s property consists in
credits : for example, in immoveables in the hands
of a tenant, in a sum due for goods sold on credit,
or in money, out upon security, that it can affect
him very deeply. Of such a man it may be the
utter ruin.
In this case, whether a man suffers to the
extreme amount, or whether he suffers at all,
depends upon what ? upon the moral honesty of
those he happens to have to do with.
There are two circumstances therefore, on which
the quantum of this mode of punishment depends:
1st, the nature of the fund from whence he draws
his subsistence ; 2nd, the moral honesty of the
people he happens to have to do with. But nei
ther of these circumstances is any ways connected
with the degree of criminality of any offence for
which a man can be thus punished. Of two men,
both guilty, and that in the same degree, one may
be ruined, the other not at all affected. The
greater punishment is as likely to fall upon the
lesser offender, as upon the greater : the lesser
upon the greater offender, as upon the lesser.
Another objection applies to this mode of punish
ment on the score of immorality. The punish
ment being of a pecuniary nature, there is a profit
D D
402 B.V. CH.VI. OUTLAWRY.
arising out of it, which accordingly is to be dis
posed of in favour of somebody. And in whose
favour is it disposed of? in favour of anyone, who,
having contracted an engagement with the delin
quent, can, for the sake of lucre, be brought to
break it.
It may be said, that the engagement being by
the supposition rendered void, there is no harm in
its being broken. True, it is void, as far as con
cerns the political sanction, but it is not void by
the moral. All that the law does is not to compel
him to perform it ; but the interests of society
require, and accordingly so does the moral sanction
require, that a man should be ready to perform
his engagement, although the law should not com
pel him. If a man can be brought in this way to
break his engagement, it is a sign that the power
of money over him is greater than that of the
moral sanction. He is therefore what is properly
termed an immoral man ; and it is the law that
either has begotten in him that evil quality, or at
least, has fostered it.
The dispensations, therefore, of the political
sanction, are, in this case, set at variance with
those which are and ought to be those of the
moral sanction. It invites men to pursue a mode
of conduct which the moral sanction, in conformity
to the dictates of utility, forbids.
CHAPTER VII.
EXCOMMUNICATION.
VARIOUS and manifold are the evils which the
punishment of excommunication inflicts, or pro
poses to inflict : various are the sources from
whence they flow. It does not confine itself to
the political sanction : it calls in, or makes as if
it would call in, the two others to its assistance.
Of Excommunication, there are two species, or
degrees : the greater and the lesser. The greater
contains all that the lesser does, and something
more. I will first then give an account of those
that are contained in the lesser, and then take
notice of those that are peculiar to the other.
Those contained in the lesser are as follows:
I. Imprisonment, the time unlimited, depending
on the good pleasure of the Judge : the severity
of it is determined by the circumstance of its being
in the Common Jail.
II. Penance, as a condition to the termination
of the other punishment. By penance is meant,
a corporal punishment of the ignominious kind.
The particular manner of inflicting it shall be con
sidered hereafter.
III. In lieu of the penance, commutation
money. The quantum of it is not limited in a
direct manner, but is in an indirect manner ; it
cannot be more than a man chooses to give, in
order to avoid the corporal penance.
404 B.V. CM. VII. EXCOMMUNICATION.
These two last are accidental ingredients in this
complex mass of punishment. Their infliction or
omission depends, in some measure, upon the will
of the prosecutor. Those which follow, are
inseparable.
IV. Disability to sue, either in a court of law
or equity. This is a punishment of a pecuniary
nature, contingent in its nature, and uncertain as
to time.
V. Disability of acting as an Advocate,* or as
an Attorney, or Procurator, for another : j- that is,
I suppose, in the Ecclesiastical Courts, and not in
any other. This is a punishment of the class of
those that affect a man s condition ; in the present
instance, it affects a man chiefly on a pecuniary
account.
VI. Disability of acting as a Juryman. J
VII. Disability of being presented to an Eccle
siastical benefice : of this, the same account may
be given as of the last disability but one.
VIII. Disability of bringing a suit, or action,
as an executor. || This is a punishment in alienam
personam: affecting those who have a beneficial
interest under the will.
IX. Incapacity of being constituted or continued
an administrator, or at least, danger of being
subjected to that disability.
X. Disability of being a witness. This, like
wise, is another punishment in alienam personam,
affecting those persons to whom this evidence, if
given, would be beneficial in respect of their lives,
fortunes, liberties, and every other possession that
is in the protection of the law.
* Gibs. 1050. Gibs. 1050.
t 2 Bacon s Ab. 674. || God. O. L. 37, 8.
t 3 Blnckst. Com. 101
B.V. CH.VII. EXCOMMUNICATION. 405
XI. The being looked upon as a heathen and a
publican. This, I suppose, is meant as a sort of
infamy.*
XII. Exclusion from all churches : this is a
species of personal restraint, that involves in it
consequences that belong to the religious sanction.
XIII. Exclusion from the benefit of the burial
service. I do not know under what class to rank
this punishment : I do not very precisely know
what benefit it is to a man after he is dead, to have
the service read over his body : if it be anything,
it belongs to the religious sanction.
XIV. Exclusion from the benefit of the sacra
ments of Baptism and the Lord s Supper. This
belongs altogether to the religious sanction.
So much for the lesser excommunication. The
greater adds two other circumstances to the
catalogue :
I. Exclusion from the commerce and communion of
the faithful.^
II. Disability of making a WilL\ This is a pu
nishment that affects the power of the party : viz.
in the present case, the investitive power perform -
able in a particular manner, with respect to the
ownership of such property, as he shall die entitled
to. In as far as the power of making a will
includes that of appointing a Guardian to a child,
as also that of an Executor to manage the pro
perty of a person, of whom the party in question
was executor : it is a punishment in alienam per-
sonam. The child may suffer for want of a proper
Guardian. The persons interested in the effects
of the first testator may suffer for want of a proper
person to manage those effects.
* Burn, Penance, 6. \ Swinb. 109. God. O.L. 37.
t I.onderb. 26fi.
406 13. V. CH.VII. EXCOMMUNICATION.
This is the mode, and the only mode of punish
ment inflicted by those Courts that go by the
name of Ecclesiastical, or Spiritual Courts. This
they are forced to make serve for all occasions ;
they have neither less nor greater : it is the only
punishment they have. When this punishment is
pronounced, they have exhausted their whole
Penal Code. If its brevity be its recommenda
tion, it must be confessed that it has no other.
Let us consider a little more particularly, the
punishments of which it is composed. Of impri
sonment, nothing in particular need be said at
present.
The punishment of penance demands more
attention. It consists in the penitent being exposed
bare-headed and bare-legged, with a white sheet
wrapped round the body, either in the parish
church, or in the cathedral, or in the public mar
ket,* there to pronounce a certain form of words
containing the confession of his crime. This, as
has been already observed, is a corporal punish
ment of the ignominious kind, and might, if defined
with precision, be employed with the same advan
tage as are other punishments of that description.
The time at which it should take place, and the
duration of the penance, ought to be determined,
but there is nothing fixed with regard to them, so
that it may continue for several hours, or only for
an instant. It may take place before a crowd of
spectators, or in the most absolute solitude.
Besides this, there is a vast difference between
the parish church of a village, and the cathedral
of a great city, or the public market of a district.
The larger or smaller concourse of spectators will
render the punishment more or less severe.
* Godolph. Appendix, 18. Burn, tit. Penance.
B.V. CH.VJI. EXCOMMUNICATION. 407
The penitent ought to pronounce a formula con
taining an acknowledgment of his crime ; a diffe
rent formula ought therefore to be provided for
every crime by law. This formula may be pro
nounced either distinctly or indistinctly a man
can hardly be expected, willingly, to proclaim his
own shame. It would therefore be proper that he
should only be required to repeat the words, which
should be clearly and distinctly pronounced by an
officer of Justice, as is practised with respect to
the administration of oaths. Certain persons,
also, should be nominated to preside over the cere
mony, and ascertain that everything is done
according to law.
Till these points are regulated, this mode of
punishment, though good in itself, will always be
subject, as it is at present, to the greatest abuses.
It will be executed with inequality, and capri
ciously, according to the condition of the indivi
duals, rather than according to their crimes, and
according as the character of the Judge is more
or less severe.
Penance is the punishment usually imposed,
says Dr Burn, " in the case of incest or inconti-
nency," these two offences are classed together
by the ecclesiastical compiler, and opposed to
what he calls smaller offences and scandals.
When we consider how far these two first offences
are removed from one another, one is astonished to
see them classed together, and visited with the
same punishment. Far be it from me to treat
lightly the exposure of innocence to infamy, the
disturbance of domestic felicity, or to degrade the
chaste raptures of the marriage bed to a level with
the bought smiles of harlots. But there are
degrees in guilt, which I see not why it should be
meritorious to confound.
408 B.V. CH.V1I. EXCOMMUNICATION.
It is not often that we hear of this punishment
being put in practice : examples of it were more
frequent in former times, but now it is most com
monly commuted for by the payment of a sum of
money.
II. As to the different legal incapacities which
form part of this punishment, the objections to
which they are liable have been pointed out else
where. (See Book IV. Misplaced Punishments.}
III. Part of the punishment consists in the
delinquent s being looked upon, if men think fit
to look upon him in that light, as a heathen and a
publican.
To try the effect of generals, the only way is
to apply them to particulars. A. is not willing, or
not able, to pay his Proctor s, or another man s
Proctor s fees. He is in consequence excommu
nicated. Amongst his other punishments, he is to
be looked upon as a heathen or a publican, that is,
as being such a sort of man as Socrates, Cato,
Titus, Marcus Antoninus, a collector of taxes, or
a Lord of the Treasury. The heaping of hard
names upon a man might, at one time, have been
deemed a punishment, but such legal trifling now
a-days, serves only to render the Jaws ridiculous.
IV. Exclusion from the churches. In our days
an exclusion of this sort shows rather oddly under
the guise of punishment. The great difficulty is
now not to keep people out of the churches, but to
get them in. The punishment, however, was not
ill designed, if it were intended to increase the
desire of attending there, by forbidding it. The
general effect of every prohibition being, to give
birth to a desire to infringe it. It affords a pre
sumption, that what is prohibited is in itself desira
ble, or at least, desirable in the opinion of the
legislator, or he would not have prohibited it :
li.V. CH.Vll. EXCOMMUNICATION . 409
such is the natural supposition when the interdic
tion relates to an unknown object ; but even when
it relates to an object which has been tried, and
neglected from distaste, the prohibition gives to it
another aspect. The attention is directed to the
possible advantages of the act : having begun to
think of them, the individual fancies he perceives
them, and goes on to exaggerate their value ; on
comparing his situation with that of those who
enjoy this liberty, he experiences a feeling of
inferiority ; and by degrees, a most intense desire
often succeeds to the greatest indifference.
Those who are forward to refer the propensity
to transgress a prohibition of any kind to an unac
countable perversity, and unnatural corruption in
human nature, as if it were not reconcileable to
the known dominion of the ideas of pain and plea
sure over the human mind, do an injustice to man s
nature, in favour of their own indolence. Man,
according to these superficial moralists, is a com
pound of inconsistencies : everything in him is an
object of wonder everything happens contrary
to what they would expect ; strangers to the few
simple principles which govern human nature, the
account they give of everything is, that it is
unaccountable.
With respect to those parts of the punishment
of excommunication which belong to the religious
sanction, such as exclusion from the sacraments,
their most striking imperfection is, their extreme
inequality: their penal effect depends on the belief
and sensibility of the individuals. The blow
which would produce torments of agony in one
person, will only cause the skin of another to
tingle. There is no proportion in these punish
ments, and nothing exemplary : those who suffer,
languish in secrecy and silence ; those who do not
410 B.V. CH.V1I. EXCOMMUNICATION.
suffer, make a jest and a laughing stock of the law
in public. They are punishments which are thrown
at hazard among a crowd of offenders, without
care whether they produce any effect or none.
I speak of these punishments with reference
only to the present life; for who is there that
supposes that a sentence of excommunication can
carry with it any penal consequences in a future
state. For what man, reasoning without preju
dice, can believe that God hath committed so
terrible a power to beings so feeble and so imper
fect, or that the Divine justice could bind itself to
execute the decrees of blind humanity ; that it
could allow itself to be commanded to punish
otherwise than it would have punished of itself.
A truth so evident could only have been lost sight
of by an abasement, which could only have been
prepared by ages of ignorance.*
* These observations might be much more extended, with
reference to the details of Ecclesiastical Judicature, but the
subject would not be of general interest. The foregoing obser
vations may therefore suffice with respect to these laws, which
are so generally condemned, and may serve to show the neces
sity for their formal abolition.
RATIONALE OF PUNISHMENT.
BOOK VI.
MISCELLANEOUS TOPICS.
CHxYPTER I.
CHOICE OF PUNISHMENTS LATITUDE TO BE ALLOWED
TO THE JUDGES.
THE legislator ought, as much as possible, to
determine everything relating to punishments,
for two reasons : that they may be certain, and
impartial.
I. The more completely the scale of punish
ments is rendered certain, the more completely all
the members of the community are enabled to
know what to expect. It is the fear of punishment
in so far as it is known, which prevents the com
mission of crime. An uncertain punishment will
therefore be uncertain in its effects since, where
there is a possibility to escape, escape will be
hoped for.
II. The legislator is necessarily unacquainted
with the individuals who will undergo the punish
ment he appoints ; he cannot, therefore, be
412 B.VI. CH.I. CHOICE OF PUNISHMENTS.
governed by feelings of personal antipathy or
regard. He is impartial, or at least, appears to be
so. A Judge, on the contrary, only pronouncing
upon a particular case, is exposed to favourable
or unfavourable prejudices, or at least, to the sus
picion of such, which almost equally shake the
public confidence.
If an unlimited latitude be allowed to Judges
in apportioning punishments, their functions will
be rendered too arduous : they will always be
afraid either of being too indulgent or too severe.
It may also happen, that being able to diminish
the punishment at discretion, they may become
less exact in requiring proof, than if they had to
pronounce a fixed punishment. A slight proba
bility may appear sufficient to justify a punishment
which they may lessen at pleasure.
There may, however, often arise, either with
regard to the offences themselves or the person
of the delinquent, unforeseen and particular cir
cumstances, which would be productive of great
inconveniences, if the laws were altogether inflex
ible. It is therefore proper to allow a certain
latitude to the Judge, not of increasing, but of
diminishing a punishment, in those cases in which
it may be fairly presumed, that one individual is
less dangerous, or more responsible than another,
since, as has been before observed, the same
nominal punishment is not always the same real
punishment. Some individuals, by reason of their
education, family connections, and condition in the
world, presenting, if we may so speak, a greater
surface for punishment to act upon.
Other circumstances may render it expedient to
change the kind of punishment ; that which has been
directed by the law may be incapable of application,
or it may be less suitable in other respects.
B.V1. CH.I. LATITUDE ALLOWED TO JUDGES. 413
But whenever this discretionary power is exer
cised by a Judge, he ought to declare the reasons
which have determined him.
Such are the principles. The details of this
subject belong to the Penal Code, and to the
Legislative Instructions to the Tribunals.
414
CHAPTER II.
OF SUBSIDIARY PUNISHMENTS.
OF all the punishments which can be appointed
by the law, there is none but what, from one
accident or other, is liable to fail. It is obvious
that against such an event it becomes the law, in
every case, to make provision. Such a failure
may arise from either of two causes : unwilling
ness, that is, want of will to bear the punishment;
or inability, that is, want of power.
The first cause, if no steps were taken to con
trol it, would naturally occasion the failure of all
punishments, the execution of which is dependant
upon the will of the party to be punished. This,
among corporal punishments, is the case with all
such as are either active or restrictive, one case
of restrictive punishment excepted, that, to wit,
in which the restraint is produced by physical
means.
To give efficacy, therefore, to the mandate, of
which any of these punishments is intended as the
sanction, it is absolutely necessary that some fur
ther punishment should be appointed to back it
through the whole of its continuance. In the first
instance, this baching, or subsidiary punishment,
as it may be called, may be taken from those two
classes, as well as from the other; and so through
any number of instances, one behind another. A
punishment of the active kind, for instance, might
B.VI .CH.II. OF SUBSIDIARY PUNISHMENTS. 415
be backed by quasi-imprisonment ; that again by
banishment ; or any one of those punishments, for
a certain term, by the same, or another, (kind of
punishment) for a further term. Ultimately, how
ever, every such series must be terminated by
some punishment that may be inflicted without
the concurrence of the party s will ; that is, by
some punishment of the passive kind ; or if of the
restrictive kind, by such restraint as is compassed
by physical means.
Even such punishments, to the execution of
which (so the party be forthcoming) the concur
rence of the party is not essentially necessary,
may fail from his want of power, or in other words,
from his inability to sustain them. This is the
case with all corporal punishments not capital,
that affect any parts of the body that are not
essential to life. It is the case, therefore, with
simply afflictive punishments, and with discolour-
ment, disfigurement, disablement, and mutilation,
in as far as they affect any of the parts just spoken
of. It is also the case with forfeitures of all kinds.
The only punishments therefore that are sure, and
require no others to be subjoined to them, are the
above-mentioned corporal punishments, in the
cases where the parts they affect are such as are
essential to life ; imprisonment, and such punish
ments, by which life itself is taken away.
Even these, like any others, may come to fail
by the want of will, (in the party to sustain them)
to wit, by his not choosing to be forthcoming,
which is a cause of failure common to all punish
ments ; but then this cause does not necessarily
produce its effect : it does not render the punish
ment of the man necessarily dependent upon his
will, for he may be taken and punished in spite of
416 B.VI. CH.II. OF SUBSIDIARY PUNISHMENTS.
his wishes and endeavours to prevent it ; which,
when a man does suffer any of these punishments,
especially death, and those other acute and heavy
punishments, is generally the case. In this case,
the only resource is in forfeitures, upon the contin
gency of a man s having anything to forfeit, that
is, within the reach of justice, or in the punish
ment of those whose feelings are connected with
his own by sympathy, as in punishments in alicnam
personam.
From the differences above -remarked respecting
the cause of failure in the punishment first- designed,
results a difference in what ought to be the quan
tity of the subsidiary punishment, concerning
which we may lay down the following rules :
Rule I. Where inability is manifestly the only
cause of failure, the subsidiary punishment should be
neither greater nor less than that which was jirst
designed. For no reason can be given why it should
be either less or greater.
Rule II. Where want of will is manifestly the only
cause of failure, the subsidiary punishment ought to
be greater than that which was Jirst designed. For
the punishment first designed is that which by the
supposition is thought the best : to determine the
delinquent then to submit to this, in preference to
the other, there is but one way, which is, to make
that other punishment the greater.
Rule III. When the cause of failure may be want
of power, or want of will, as it may happen, and it
cannot be known which, the subsidiary punishment
ought to be greater than the punishment first designed,
but not so much greater as in the case last mentioned.
This is apt to be the case with pecuniary forfeit
ures. If, however, it can be ascertained which of
these is the cause, it ought always to be done,
B.V1.C11.1I. OF 8UUS1DIAUY PUNISHMENfS. 417
otherwise, on the one hand, he who fails from mere
inability, -will be punished more than there is
occasion ; and he who fails wilfully, not enough.
When a man fails wilfully to submit to the
punishment first designed for him, such a failure
may be considered in the light of an offence.
Viewing it in this light, \ve shall immediately see
the propriety of the following rule.
"Rule IV. The subsidiary punishment ought to be
made the greater, the easier it is for the delinquent to
avoid the punishment Jirst designed (without being
detected and made amenable). For the punishment,
to be efficacious, must always be greater than the
temptation to the offence ; and the temptation to
the offence is the greater, the greater is the uncer
tainty of that punishment which is the motive that
weighs against the profit of the offence.
Imprisonment is the most convenient and natural
kind of subsidiary punishment, in cases vvheie the
offender cannot or will not submit to a pecuniary
punishment. A circumstance that renders these
two modes of punishment particularly apt for
being substituted to each other, is their divisibility :
they admit of every degree that can be desired.
Simple afflictive punishments, on account of
the infamy they involve, cannot in general be eli
gibly employed as substitutes for pecuniary
punishments.
In case of violation of boundaries of local con
finement, the most eligible substitute is imprison
ment. A single act of transgression may be taken
i "
as a sufficient warning that the penal mandate is
not meant to be regarded.
Laborious punishments require an uninterrupted
train of attention, in order to compel the delin
quent to submit to them. A constant supply of
E
418 B.VI.CH.II. OF SUBSIDIARY PUNISHMENTS.
fresh motives is required : to produce the desired
effect, it is necessary therefore that these motives
should be drawn from a stock of punishment that
is susceptible of minute division, and capable of
being applied at the moment it is wanted. Thus,
whenever an Inspector is appointed in a House of
Correction in which the individuals confined are
employed in hard labour, power is tacitly given to
him to inflict personal correction. The infamy by
which it is accompanied, is not an objection :
because, by the principal punishment the penal
labour an equal degree of infamy is produced.
We have already observed, that to pecuniary
punishment, in case of inability on the part of the
patient, ought to be substituted imprisonment.
But by what standard are we to estimate a sum
of money by a sum of imprisonment for what
debt, or part of a debt, is each day s imprison
ment to be reckoned as an equivalent ?
Let us say that the amount of the debt struck
off by each day s imprisonment shall be equal to
what each day the patient might have earned, had
he remained in a state of liberty. The daily
income of a mechanic, sailor, soldier, artist,
labourer, servant, may be calculated according to
the wages of persons employed in the same pro
fession.
The daily income of a farmer may be estimated
according to the 365th part of the rent of his farm.
If, besides his farm, he is engaged in any other
line of business, the daily benefit arising from that
business must be added to the income arising from
his farm.
The revenue of a man who is not engaged in
any business, or is not a manufacturer, may be
calculated as being eight times the rent of his
8.VI.CH.II. OF SUBSIDIARY PUNISHMENTS. 419
house. If he is a manufacturer, at four times the
rent of his house. If he is engaged in trade, at
six times that rent.
The revenue of a man that boards and lodges in
the house of another, may be estimated at double
the sum that he so pays. If he lodges only, at
four times that sum. If he is supported gratuit
ously in the house of a relation, as equal to the
value of his board and lodging.*
The points that then required to be determined,
are the three following :
I. The income being given, what portion of the
debt shall be considered as being abolished, by
imprisonment of a certain duration ?
II. From what period anterior to the contract
ing of the debt, ought the value of the income to
be estimated ?
III. What proofs ought to be required by which
to fix the amount of the income in question ? It
would be the interest of the debtor to make it
appear as great as possible. During the exami
nation, the creditor ought to be present, and to be
at liberty, either by himself or his counsel, to
examine the defaulter.
The more exalted a man s rank, the greater in
general are his annual outgoings ; the greater,
consequently, ought to be the debt abolished by a
given period of imprisonment.
* Example.
Per Day.
Per Year.
{Debt discharged by )
seven years >
impmonment. }
. s. d.
109 11
Labourer.
. . d
1
. s d.
15 13
Ensign,
038
66 18 4
{Debt discharged by~|
a year s >
imprisonment. J
66 18 4
420 B.VI. CH.II. OF SUBSIDIARY PUNISHMENTS.
I confine myself then to the laying down the
principles upon which the calculation may be
made : the details of their application belong more
properly to the Penal Code than to a work on
punishment.
421
CHAPTER III.
OF SURETY FOR GOOD CONDUCT.
THE obligation of finding sureties for good con
duct is an expedient, the utility of which appears
more problematical in proportion as it is examined
more nearly. A condition which is essential to
it is, that there be an ulterior punishment destined
to replace this obligation, in case its fulfilment is
found impossible. This subsidiary punishment is
ordinarily imprisonment, this imprisonment is
ordinarily indefinite as to its duration : it may be
perpetual, and it is natural that it should be so.
Does the accused find himself without friends
ready to risk their security upon his good conduct?
Imprisonment, and the ignominy that accompanies
it, are means little proper for enabling him to find
friends so devoted.
Suppose that he finds them ; what happens
then ? To a properly seated punishment, a vica
rious punishment is added, a punishment to be
borne by the innocent for the guilty. In the
nature of things, any punishment might be equally
well employed for this purpose. By custom,
pecuniary punishment only is employed in the
first instance, which, however, changes into impri
sonment, in case of insolvability, according to a
general rule. It is not, however, natural, that a
man, especially a man who, by the supposition,
has given proofs of misconduct, should find friends
422 B.VI.CH.III. OF SURETY FOR GOOD CONDUCT.
who will expose themselves to be punished for
actions over which they have no power, unless he
have wherewith to indemnify them for bearing
this pecuniary punishment. Does he find them
in this case ? Then this expedient is useless ; it
would have been quite as well to have fixed the
amount upon him directly. In order that this
expedient may have an efficacy of its own, it will
be necessary to limit its use to the case in which
the incapacity of the accused to furnish this indem
nity is known. Does he, after this, find any per
sons sufficiently generous thus to expose themselves
for him ? It is, without doubt, something gained
in point of security, but it is a security very dearly
bought. In all other cases, this expedient
resolves itself into a question of account.
The support which the law receives from this
expedient, springs from two sources : it operates
as an additional punishment, whereby the will of
the accused is influenced ; this punishment, con
sisting in the remorse which a generous mind
would feel in seeing friends, who had devoted
themselves for him, plunged into misfortune by
his ingratitude. It is also an expedient whereby
he is attacked upon the side of power: his sureties
become guards, whom the danger to which they
are exposed induces to watch over his conduct.
But will he, whom the fear of punishment to
be inflicted upon himself has been found insuffi
cient to restrain, be restrained by the fear of a
less punishment to be inflicted upon another ?
Those passions which have stifled the voice of
prudence, will they obey those of generosity and
gratitude ? they may obey it, but that they will
not obey it is, I think, most natural ; but if this
is so, it is a very costly expedient. In the majo
rity of cases, instead of insuring the good of pre-
fi.VI.CH.III. OF SURETY FOR GOOD CONDUCT. 423
vention, it will produce the evil of punishment
of punishment borne by the innocent.
Whilst, as to this guard, it is a security much
more verbal than real it would be a very weak
security, even if the individuals were his compa
nions, and lived under the same roof with him at
all times. But it is not among such as these that
sureties are selected : they are, under the English
law, required to be householders, having separate
establishments. Is it then possible, that the pas
sion which, by the supposition, had broken through
the united restraints of prudence, gratitude, and
honour, should be restrained by so loose a band.
Besides this, is it natural that the extremes of
confidence and mistrust should be united in the
same person.
The bitterness of this punishment, to which the
innocent are made to expose themselves, is not
taken away by calling the exposure voluntary.
This willingness is owing only to the constraint
which the consideration of his friend being sent,
or about to be sent, to prison for life, brings with
it. It is a willingness produced by torture.
In conclusion, suretyship is a resource which
ought not to be resorted to without very evident
necessity, if it were unattended with any other
inconvenience than this, of exposing the virtue of
individuals to these combats, which, in a moment
of weakness, may give birth to a remorse, which
shall end only with life.
This expedient is much employed under the
English law ; but custom has caused it to exist
only in connexion with judicial commmation. A
certain fine is determined on, the accused is made
to say, I consent to the payment of this fine, if I
commit a certain offence. One or more sureties
are made each to say, I consent on the same con-
424 B.VI.CH.I1I. OF SURETY FOR GOOD CONDUCT,
dition to owe the same, or a part of the same sum.
In this manner, as if an inevitable punishment
required an extorted consent to its infliction, the
accused himself is made to contract an engage
ment, which, if it is not always ridiculous, it is that
it is sometimes unjust. Implying a claim upon
his property, it serves to rob his creditors of their
just rights to payment of debts contracted between
the period of the engagement and the contracting
of the debt.
Of this ill-contrived compound mischief, what
are the effects in practice ? very commonly, none.
This formality is complied with, as so many others
are complied with, without thinking of what it
means, partly from duty, and partly from habit.
Sometimes it may be useful, because it always
includes admonition, and sometimes threatening,
according to the proportion between the fine
threatened, and the punishment which would have
had place without it ; sometimes for want of
sureties it may be believed that the accused him
self may go to prison ; sometimes, after having
found them, it may equally be believed that they
may incur the fine, and that they pay it, or go to
prison, with or without him. Do- these misfor
tunes frequently happen ? I know not. How can
I know ? This is one of those thousand things on
which everybody ought to be instructed, and of
which no one can find an opportunity of learning
the truth.
425
CHAPTER IV.
DEFEAZANCE OF PUNISHMENT.
SECTIOX I. Of Pardon.
IT is necessary to increase the magnitude of a
punishment in proportion as it is wanting in cer
tainty. The less certain your punishments are,
the more severe they must be ; the more certain
your punishments are, the more you may reduce
their severity.
What shall we then say of a power expressly
established for rendering them uncertain ? I mean
the power of pardoning : it has cruelty for its
cause, it has cruelty for its effect.
Among nations, as among individuals, the
government of the passions precedes that of rea
son. The object of primitive punishments was,
to assuage the rage of their authors. Of this there
are two proofs : the first is drawn from the multi
tude of cases in which the most severe punish
ments have been lavished upon actions which
have but a slightly hurtful influence upon the
happiness of individuals or society, and with
respect to which such evil influence was not sought
to be established, till long after these punishments
were appointed of this kind are the punishments
directed against heresy. The second is drawn
from the praises lavished upon clemency : for
whilst the effect of an offence is only to enrage
the Sovereign, there is merit in his abstaining from
426 B.VI. CII.IV. DEFEAZANCE OF PUNISHMENT.
punishing it. There is utility in his so doing, for
by a privation which is borne by him alone, he
spares the infliction of terrible evils upon a multi
tude of persons. In this consists the difficulty,
for it is difficult to a man accustomed to follow the
bent of his inclinations to restrain them. Sup
pose the effect of a crime is to interrupt his ease,
and the effect of the punishment is to repress this
crime ; to abstain from the application of this
punishment is a treason of which the most par
donable sources are feebleness or folly. To praise
the clemency of the Sovereign upon this suppo
sition, is to praise the surgeon, who allows, his
patient to perish by not cutting off a gangrened
finger. Among Sovereigns, therefore, without
cruelty, the use of unmerited pardons could not
take place : the reason is, an enlightened love of
the public welfare does not engage him in undoing
with one hand what he had done with the other.
If the punishments have not had for the cause of
their establishment cruelty towards individuals, it
is cruelty towards the public to render them use
less, to violate his promise, the engagement which
he has made to the laws to put them in execution.
I speak here of gratuitous pardons, such as all
pardons have hitherto been. There are cases in
which the power of pardoning is not only useful,
but necessary. In all these cases, if the punish
ment were inflicted, the evil produced would
exceed the good, and in some cases, almost infi
nitely. If the legislator could have known that
certain individual cases would or would not be
included in the general case in which he would
have wished that the punishment should cease, he
would act unwisely were he to rely upon any
other person for its cessation. For why should
he give to another a power to frustrate his designs?
B. VI. CH. IV. DEFEAZAXCE OF PUNISHMENT. 427
But he does not possess this knowledge, unless in
quality of legislator, he acts also in that of a pro
phet. It follows, therefore, that he must rely
upon some other.
In English law, one method by which the law
gives to a party injured, or rather, to every prose
cutor, a partial power of pardon, consists in giving
him the choice of the kind of action which he will
commence. On this, or on the difference between
the actions, depends a difference between the
punishments so far as the happening of this dif
ference is concerned, the lot of the offender
depends not on the gravity of his offence, but on
some other foreign circumstances, such as the
degree of the ill-will of the party injured, or other
prosecutor, or of the knowledge of his legal advi
sers. The Judge is a puppet in the hands of any
prosecutor, which he can cause to move at his
pleasure and caprice.
There are many persons, as we have seen, who
exercise the power of pardoning ; there are many
others who possess it who are not observed.
Among the latter class may be placed those
who have the power of placing nullities in the
course of procedure. In England, an attorney,
or his clerk, any copying clerk at eighteen pence
or two shillings per day, may grant or sell impunity
to whomsoever it seems them good.
If the individual injured can directly, or indi
rectly, put an end to a criminal process, otherwise
than by the punishment before the judgment has
been pronounced, and in case of conviction, exe
cuted, he enjoys in effect this right of pardoning.
The right of remission is then one branch of the
power of pardoning. When the interest of the
public requires that the punishment should take
place, the individual injured ought not to enjoy
428 B.VI.CH.IV. DEFEAZANCE OF PUNISHMENT.
this right ; when this interest does not require it,
he may enjoy it.
This power may be allowed in all cases, when
the offence on which it operates, being founded
only in a private quarrel, does not spread any
alarm through society, or at least does not spread
any alarm which the conduct of the parties does
not destroy.
But in the case of corporal injuries, how trifling
soever, and especially in the case of injuries ac
companied with insult, this remission ought not to
be allowed without the knowledge of the Judge,
otherwise the weakness and good-nature of some
minds would serve to draw down upon them vex
ation from hardened oppressors.
Homicide is a case in which the power of remis
sion ought not to be allowed to any one in parti
cular. It would, in effect, be to grant to him an
arbitrary power over the life of those whose death
he might thus pardon ; he might boldly employ
any assassin, by exercising in favour of that
assassin his power of pardoning.
If to grant to any one whatsoever, the power of
taking away a reward offered by the legislator
would be regarded as an absurdity, to grant the
power of taking away a punishment in the opposite
case, with the reserve of specific exceptions,
would be a more terrible absurdity.
This absurdity is not found in the system of
rewards : no person proposes to take away a
reward after the legislator has offered it ; the nul
lities, however, allowed in prosecutions, when he
has appointed a reward for offenders, operates to
this effect in the case of punishment.
The frequency of capital punishment is one of
the most probable causes of the popularity of
pardons.
B.VJ.CH.IV. DEFEAZANCE OF PUNISHMENT. 429
In England, it may therefore admit of debate,
whether the legislature has done most evil by
appointing so many capital punishments, or the
Sovereign, by exercising his power of remitting
them.
The essence of this power is, to act by caprice.
The King, as it is falsely said, the Deputy of the
King, as it ought to have been said, does not act
judicially ; he does not act from a knowledge of
the matter ; he has not the power of doing so ;
he has not even the power of compelling the
attendance of witnesses. Is a lie told before this
powerless despot? it is an unpunishable lie.
The power of pardoning is often said to be one
of the brightest jewels in the Royal Crown : it is
burdensome as it is bright, not only to those who
submit to the Crown, but still more so to him also
who wears it.
Many cases have occurred in England in which
the counsellors of the Crown have, from more or
less praiseworthy motives, made use of this law
ful despotism of the King, to soften the tyranny
of the laws. Never was power so undoubtedly
legal, though undue, employed for a mere legiti
mate purpose, the result, however, has been,
not that the Minister has been applauded as he
deserved, but he has become the object of clamour,
libels, and threats. The most correct and legiti
mate exercise of the powers impoliticly attached
to his character, has only served to draw down
upon the King that treatment which a tyrant
would have merited.
How much discontent and fear would have been
spared, if a right, legally abusive, had given place
to an enlightened and well ordered law.
430 B.VI.CH.IV. DEFEAZANCE OF PUNISHMENT.
SECTION II. By length of time.
Ought punishment in any cases, and in what,
to be defeasible by length of time ? By the time,
I mean, that has elapsed since the commission of
the offence.
At first view, the answer seems to be clearly in
the negative. For what, it may be said, has the
circumstance of the length of time to do with the
demand there is for punishment ?
Upon a nearer view, however, it will be found,
that the utility of prescription in certain cases is
maintainable by specious, at least, if not conclu
sive, arguments.
As a foundation for these arguments, it must be
admitted, that if in any case the suffering of the
delinquent is not necessary for the attainment of
the ends of punishment, the punishment ought not
to be inflicted.
This being premised, it should seem, that in a
view to one of the ends of punishment, to wit,
reformation, the execution of it after a certain
length of time, is not necessary. A certain num
ber of years, suppose ten, has elapsed since he
committed the offence : now then, in all this time,
either he has committed similar offences, or he has
not. If he has not, he has reformed himself, and
the purpose of the law has been answered without
punishment ; if he has, he has been punished for
subsequent offences, and the discipline he stood
in need of, has been already administered to him,
at a time when he stood more in need of it than
he can be supposed to stand at present.
Thus stands the argument upon the ground of
Reformation : but of the facts alleged, one, it
must be confessed, is rather problematical. If a
man commit an offence, and is forthcoming ten
B.VI. CH.IV. DEFEAZANCE OF PUNISHMENT. 431
years afterwards, it is by no means clear, from his
not having been punished for any similar offences,
that he has not committed any. In the same
manner that he escaped detection or prosecution
for the first, he may have escaped detection or
prosecution for any number of other similar offen
ces. The difficulty of detection, the death of wit
nesses, the subtleties of procedure, are circumstan
ces that afford ample grounds for disputing the
force of the inference, from his not having incurred
punishment to his not having deserved it.*
Upon the ground of example, there is still less
to be said in favour of prescription. If the pre
scription is not to take place till at the end of a
long period, as ten years (the number above taken
for an example), it will not contribute, in any
assignable degree, to lessen the apparent value of
the punishment. When a man meditates a crime,
his great fear is the being detected and apprehended
immediately almost upon the commission of it.
The taking away the danger that would await him
at the end of ten years, will add very little to his
security. f
When a crime has been committed, either the
person only who committed it may remain
unknown, or the facQ itself as well as the person.
If either be unknown, it is plain no prosecution
* Any one who is at ail conversant with anecdotes of noto
rious criminals must have observed, that nothing is more commou
in this country than for a man to be guilty of twenty, thirty, or
forty thefts or robberies, before punishment overtakes him.
f Mr Bentham does not appear to have carried on his exami
nation of this subject in respect to the other ends of punish
ment. Ed.
I Under the name of the fact, I would here include such
and so many circumstances as are necessary to make the act
in question come under the denomination of some crime.
432 B.VI. CH.IV. DEFEAZANCE OF PUNISHMENT.
can have been set on foot. If both be known,
then either a prosecution may have been set on
foot, or not. It is only in case of there being no
prosecution, that prescription has ever been
allowed. The rule is, that a man shall not be pro
secuted after that interval has elapsed, not that if
he has been prosecuted and convicted, he shall
not suffer.
The apprehension of danger commences at
the time of the discovery. Persons who are about
the criminal now understand that they have among
them a thief, a robber, or a murderer : this cannot
but give them some alarm. If no punishment at
all is to be inflicted on him, if he is suffered to go
on and live where he did before, how is this alarm
to be quieted.
In crimes the object of which is a pecuniary
profit, prescription ought not in any case to ope
rate so as to protect the delinquent in the enjoy
ment of his ill-gotten acquisition.
Neither ought it not to operate in such manner
as to leave innocent persons exposed to suffer from
their terror or abhorrence of the criminal.
There are also certain crimes, in respect of
which prescription ought not to be adopted in any
case. Such are three species of homicide : viz.
homicide for lucre, through wantonness, or from
premeditated resentment ; incendiarism ; and the
offence of sinking a vessel manned, or of laying a
country under water. The mischief of crimes of
these kinds is so great, that it seems paying too
great a regard to the interests of the criminal, to
adopt a rule that may contribute, though in ever
so small a degree, to lessen the apparent certainty
of the punishment ; and the horror or terror, a fact
of any of those kinds inspires when discovered, is
15. VI. Cll.1V. DEFEASANCE OF PUNISHMENT. 433
so great, that that circumstance alone seems enough
to overweigh any good that could be gained by it.
What is the good in view in prescription ? It is
the interest of one single person that is in ques
tion : the delinquent. The sparing of that single
person from a suffering which it is supposed it
may, in the case in which it is proposed the pre
scription should take place, not be necessary, at
least not so necessary as formerly to the purposes
of punishment to inflict. Now, when it is a crime
by which men are exposed to suffer in their indivi
dual capacities, it can scarcely be detected, but a
multitude of persons must begin to suffer: to wit,
by the apprehension of his committing other such
crimes in future, of which they may chance to be
the objects ; and this suffering of theirs will con
tinue, till he be manifestly disabled to hurt them :
the least penal method of doing which, is to send
him out of the way.
Upon this slight examination, we perceive that
the utility of prescription will vary greatly in
respect of different offences. To discuss this topic
completely, it would be necessary, therefore, to
consider it with a view to the several sorts of offen
ces. To do this fully, belongs not to our present
subject all we can do in this place is, to offer a
few general hints, just to put us in the way, and
to serve as a clew to indicate the principal points
upon which the enquiry ought to turn.
Whether a given person, detected after such a
length of time, of a crime of the sort in question,
is or is not an object of terror to those around him,
is a question that can be answered only by a par
ticular enquiry : it is a matter, therefore, that
ought rather to be committed to the Magistrate
who has the power of pardoning, than to be pro
vided for by a general law.
r F
434 B.VI. CH.IV. DEFEAZANCE OF PUNISHMENT.
SECTION III. By death of parties.
In pursuit of (the means of making) compensa
tion, the business of punishment is apt to be over
looked. When one man, the party injured, is
presented with what another man, the injurer, is
made to pay, men are apt to take it for granted,
and at first asking, would be apt to answer, that
there is no punishment in the case. They imagine,
but hastily and erroneously, that the only person
who has suffered by the offence, is that party who
is the immediate object of the injury. If then
that person, by an operation of law, be made to
enjoy as much as by the offence he had been made
to suffer, they conclude (and justly enough were
the foundation true) that everything is set to rights,
and that the law has nothing more to do. The
pain which the offender is made to suffer by being
made to give up what the party injured is made
to enjoy, they do not look upon in the light of
punishment. They look upon it as a circumstance
resulting, accidentally and unintentionally, out of
the operation by which an indemnification is pro
duced to the injured party, so that it would be
but so much the better if that pain could be alto
gether spared ; and it is for want of being able to
save it, that it is suffered to exist. In short, so
entirely is the idea of punishment lost in that of
compensation, that a law which appoints the latter
is not understood to appoint the former, is not
looked upon as a penal law.
Punish, however, it must a penal law in one
sense of the word, it must be, if it is to have any
effect at all in preventing the practice which is
productive of the mischief it means to cure ; and
it is by punishing that it does more good than by
B.VI.CH.IV. DEFEAZAXCE OF PUNISHMENT. 435
indemnifying. For of the two ends, prevention
and compensation, the former, as has been proved,
is by much the most important.
This neglect, however, of the principal end of
laws made in restraint of private injuries, has not
been attended with all the ill consequences that
might at first sight be imagined. The indemnifi
cation being made to come out of the pocket of
the aggressor, has produced the punishment of
course. Now, under the laws of most nations, in
most instances of acknowledged injuries, indem
nification has been exacted, and by that means,
in most cases, it has happened that punishment
has been applied. Yet not in all : because com
pensation has been made defeasible by contingen
cies ; I say in most, but it has not in all : for
there are two events by which in all these cases
indemnification is rendered not necessary in so
great a degree as it was before, and, as it may
appear upon a superficial glance, not necessary at
all. In effect, upon the happening of either of
these two events, under most laws, and particularly
under our own, the obligation of making compen
sation has been cancelled. At the same time
compensation being the only object in view, this
being taken away, punishment has of course
dropped along with it. But in these cases, as I
hope soon to make appear, howsoever it may
stand with compensation, the demand for punish
ment has not been lessened by either of the events
in question.
These are, 1st, the death of the injurer; 2dly,
the death of the party injured.
I. The death of the injurer has been deemed to
take away the occasion for indemnification. The
reason that occurs is, that there is nobody to give
it. Had he continued alive, he ought to have
436 B.VI.CH.IV. DEFEAZANCE OF PUNISHMENT.
given it, doubtless ; but as he is gone, who ought
then ? Why one person rather than another ?
To answer these questions at large, we must
make a distinction according to the nature of the
offence. The offence is either attended with a
transferable profit, a fruit transmissible to the
representatives of the offender, or not. In the first
case, the obligation of making compensation ought
clearly to devolve on the representative on the
score of punishment, if on no other. In the latter
case, there would still be one use in its being made
to devolve on the representative, as far as the pos
sessions he inherits from the party deceased extend,
though not so great a use as in the former case.
Where the profit of a transgression is trans
missible to a representative, the obligation of
restoring the amount of it ought likewise to devolve
on him ; if not, the punishment would not, in the
case in question, be equal to the profit : in fact,
there would be no punishment at all, no motive
for the party under temptation to abstain from it.
It may occur for the first moment (but it will soon
appear to be otherwise) that neither will there in
contemplation of this case be any temptation : for
if the injurer thinks himself about to die, there
will be an end of the profit of the injury. But
this is not the case : should he be made to lose it
ever so soon himself, he may transmit it to those
who are dear to him, so that the pleasure of sym
pathy, grounded on the contemplation of their
enjoyment, is a clear force that acts without con
trol, and impels him to transgression. Besides
this, the delays and uncertainty of justice add still
to the force of the temptation. If he can contrive
to spin out the suit so long as ha lives, the whole
business from beginning to end is clear gain to him.
II. Even though the profit of a transgression be
13. VI. CH. IV. DEFEAZANCE OF PUNISHMENT. 437
not of such a nature as to be transmissible to a
representative, there seems still to be a reason
why the obligation of making amends ought to
devolve on the representatives, as far as they have
assets.* Such an arrangement would be eligible,
as well on account of punishment as of compensa
tion.
On account of compensation, for the following
reasons : the mischief of the transgression is a
burthen that must be borne by somebody : the
representative and the party injured are equally
innocent in this respect, they stand upon a par ;
but the representative would suffer less under the
same burthen than the party injured, as we shall
presently perceive. From the moment when the
injury was conceived, the party injured, in virtue
of the known disposition of the law in his favour,
entertained expectations of receiving amends. If
these expectations are disappointed by a sudden
and unforeseen event, like that of the delinquent s
death, a shock is felt by the party injured, such
as he would feel at the sudden loss of anything of
which he was in possession. The eventual repre
sentative entertained no such determinate expec
tations. What expectation he could entertain in
the life-time of his predecessor, respected only the
clear surplus of his fortune ; what should remain
of it after the deduction of all charges that might
be brought upon it by his misfortunes, his follies,
or his crimes.
On account of punishment, for the following
reason : the punishment of the delinquent in his
own person, is a punishment which fails upon his
death. The burthen thrown upon those who are
* Assets : Effects descending to them from the ancestor, and
liable to alienation.
438 B.VI. CH.IV. DEFEAZANCE OF PUNISHMENT.
dear to him, extends his punishment, as it were,
beyond the grave. Their suffering, it is true, will,
for the reasons above given, not be very consider
able ; but this is what the bulk of mankind are not
apt to consider. It will be apt therefore, in gene
ral, to appear to him in the light of punishment,
and will contribute to impose a restraint on him
in a case in which, otherwise, there would be none.
Nor will this advantage, in point of punishment,
be charged with that expense, which renders punish
ments in alienam personam generally ineligible : for
when the burthen is made to rest on the represen
tative who has assets, there is less suffering, as we
have shown, upon the whole, than if it were to
rest upon any other person.
The law of England on this head is full of
absurdity and caprice. The following are the
instances in which (the heir is permitted to enrich
himself by the wrongdoing of his ancestor) a man
is permitted to enrich his heir with the profit of
his crimes.* By the wrongful taking and with
holding of any kind of moveables, while, if it had
been by only withholding money due, the heir must
have refunded. By the waste committed on
immoveables, in which he has only a temporary
interest. f By selling a prisoner for debt his
liberty. By embezzling property entrusted to
* In all these points, I depend upon the authority of Comyn s
Digest, I 262, 263.
f A person whom I know, having the immediate reversion of
an estate, part in houses, part in land, rented the land of a per
son who had the life-interest in both. The life-owner letting
the houses go to ruin, the reversionary, to indemnify himself,
stopt the rent of the land. The life-owner died without repair
ing the houses, as he was bound : the consequence was, that
the reversioner, (as he was advised, to his great surprise) though
obliged to pay his rent, lost his remedy for the waste.
B.VI.CH.IV. DEFEAZANCE OF PUNISHMENT. 439
him by will : though, if he had not broken any
such confidence, but had intruded himself into the
management of the dead man s property without
warrant, the heir must have refunded ; in short,
by any kind of injurious proceeding, where the
compensation, instead of being left to the discre
tion of a Jury, is thought fit to be increased and
liquidated by a positive regulation.
The death of the party injured is another event
upon which the obligation of making amends is
very commonly made to cease ; but with full as
little reason, it should seem, as in the former case.
The death of the party in question is a contingency
which does not at all lessen the demand there is
for punishment. For compensation, indeed, the
demand is not altogether so strong in this case, as
in the former : the person who was the immediate
object of the injury, entertained a prospect of
reaping, in present, the whole profit of a compen
sation he expected to be adjudged to him; his
representative did not, during the life-time of the
principal, entertain so fixed a prospect : he, how
ever, entertained a full prospect of some compen
sation to be made to his principal ; and he enter
tained a prospect of a part, at least, of that
compensation devolving upon himself, subject to
the contingencies to which his general expectations
from the principal were exposed. This expecta
tion is more than any one else was in situation
to entertain, so that there is a better reason why
he should reap the profit of the punishment, than
why any one else should.
The law of England has been more liberal in
the remedies it has given to the heir of the party
injured, than in those which it has given against
the heir of a wrong-doer. It gives it to the heir in
all cases, as it should seem, of injuries done to the
440 B.VI. CH.IV. DEFEAZANCE OF PUNISHMENT.
property of the ancestor. It denies it however in
the case of injuries to the person,* be they ever
so atrocious ; and probably, in the case of injuries
to the reputation. This omission leaves an
open door to the most crying evils. Age and infir
mity, which ought, if any difference be
made, to receive a more signal protection from the
law, than the opposite conditions of life, are
exposed more particularly to oppression. The
nearer a man is to his grave, the greater is the
probability that he may be injured with impunity,
since, if the prosecution can be staved off during
his life, the remedy is gone.f The remedy, by a
criminal prosecution, is but an inadequate succe,-
daneum. It extends not to injuries done to the
person through negligence, nor to all injuries to
the reputation : it. is defeasible by the arbi
trary pleasure and irresponsible act of a servant of
the Crown : it operates only in the way of punish
ment, affording no compensation to the heir.
After so many instances where no satisfaction
is exigible from the heir for transgressions, by
which he profits, no one will wonder to find him
standing exempt from that obligation in the case
* 1 Comyns s Dig. 261-
t A man may be kept in gaol, and his fortune ruined by it;
and if he die under the imprisonment, his family are without
remedy. In some cases, the wrong-doer may not even be
punishable tty a criminal prosecution ; or he may be maltreated
in such a manner, as to contract a lingering distemper, such as
does not follow from the injurious treatment with sufficient
speed and certainty to bring it within the crime of murder. If
the prosecution can but be staved oft till he dies, his family are
without remedy. Many years ago, a butcher was committed to
Newgate, at a time when the gaol distemper was raging in that
prison, upon a false and malicious charge of theft. He died
there, leaving a large distressed family, who were altogether
without remedy for this atrocious injury.
B.VI.CH.IV. DEFEAZAXCE OF PUNISHMENT. 441
of such injuries as, being inflicted commonly, not
from rapacious, but merely vindictive motives, are
not commonly attended with any pecuniary profit.
Such are those done to the person, or to the repu
tation, or in the way of mere destruction to the
property. So accordingly stands the law.*
Though there are none of them by which the
injurer may not, in a multitude of cases, draw
indirectly a pecuniary profit : for instance, in the
case of a rivalry in manufactures, where one man
destroys the manufactory of his more successful
rival.
y I rest still on the authority of Comyns, except in the case
of injuries to reputation, in which I conclude from analogy,
Comyns being silent.
THE END.
LONDON:
PRINTED BY C. AND W. REYNELL, 45, BROAD STREET, GOt DEV SQUARE.
ERRATA.
p. 90, line 5, for mark read mask
96, 23, Hanare Hanau
98, 11, on in
29, mutilation mutilations
137, 17, falls fell
142, 38, arbem uibem
145, 23, tho the
166, 6, fixed forced
173, 20, head hand
188, 20, cause excuse
192, 29, as is
248, 15, on arguments an argument
252, 28, corporal corporeal
272, 34, door slave
307, 10, these this
358, 22, is would be
110, 18, insert a
169, 3, the
214, 28, it
348, 17, and
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