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
