The Rationale of Punishment

Book I

General Principles

Chapter VII

Of the Properties to be Given to a Lot of Punishment

It has been shewn what rules ought to be observed in adjusting the proportion between punishment 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 punishment is variability; that it be susceptible of degrees 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 excess 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 duration. 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 intensity. A prison may be more or less severe. Banishment may be directed to a genial or ungenial clime.

II. Equability.

A second property, intimately connected with 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 legislature, and that capable of being screwed up or let down to any degree that can be required, if, after all, whatever degree of it be pitched upon, that same degree shall be liable, according to circumstances, to produce a very heavy degree of pain, or a very slight one, or even none at all. 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 pecuniary punishment, when it respects some particular 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 forfeiture of moveables, not extending to immoveables. In some cases this is the principal punishment—in others, even the only one. The consequence is, that if a man's fortune happen to consist in moveables, he is ruined; if in immoveables, 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 substituted for pecuniary punishment, when the poverty of the individual prevents the application of the latter.

An uncertain punishment is unequable. Complete 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 according 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. Commensurability.

Punishments are commensurable when the penal effects of each can be measured, and a distinct conception formed, of how much the suffering produced 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, therefore to be able to compare these punishments among themselves, and measure their different degrees.

If the same punishment of death is denounced 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 example, to five years of imprisonment for a certain crime, a mark of disgrace for a certain aggravation.

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 respect. 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. Exemplarity.

A mode of punishment is exemplary in proportion to its apparent, not to its real magnitude. It is the apparent punishment that does all the service 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-fés would furnish 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 grandeur of its object. The preparation for it—the place of exhibition—and the attendant circumstances, 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 melancholy 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 appearance of rigour.

VI. Frugality.

If any mode of punishment is more apt than another to produce superfluous and needless pain, 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 superfluous pain is produced on the part of the person punished, but even that same operation by which he is subjected to pain, is made to answer the purpose of producing pleasure on the part of some other person.

Pecuniary punishments possess this quality in an eminent degree; nearly al1 the evil felt by the party paying, turns to the advantage of him who receives.

There are some punishments, which, with reference to the public expense, are particularly unfrugal: for example, mutilations, applied to offences of frequent occurrence, such as smuggling. When an individual is rendered unable to work, he must be supported by the state, or rendered dependent 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 delinquent, after he has been punished, is only deterred 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 stil1 more vicious. Punishments 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 perditæ parcit. Impunitatis genus est jam non habere pœnæ 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 delinquents 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.

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 economy 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 administration, the guardianship, the trust, he has abused. This remedy may equally he employed in domestic and political government.

IX. Subserviency to Compensation.

A further property desirable in a lot of punishment 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 frorm it be given to that person. 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.

X. Popularity.

In the rear of all these properties may be introduced that of popularity—a very fleeting and indeterminate kind of property, which may belong to a lot of punishment one moment, and be lost by it the next. 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 catalogue is, that it may serve as a memento to the legislator not to introduce, without a cogent necessity, 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 injudicious conduct on the part of a legislator would be to turn the tide of popular opinion against himself: he would lose the assistance which individuals voluntarily lend to the execution of the 1aws which they approve: the people would not be his allies but his enemies. Some would favour the escape of the delinquent; the injured would hesitate 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 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 selection. 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 confine 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 defective in this respect. A capital felony includes different lots of punishment, the greater part unknown, and consequently inefficacious. A felony with benefit of clergy, is equally obscure: the threatening of the law does not convey any distinct idea to the mind; the barest idea which the term would offer to an uninstructed person, would be that it had some reference to a reward. A præmunire 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 punishment is applied, punishment is needful: that it ought to be applied, and therefore cannot be remitted. But in very particular, and those very deplorable cases, it may by accident happen otherwise. Punishment may have been inflicted upon an individual whose innocence is afterwards discovered. The punishment which he has suffered cannot, it is true, be remitted, but he mav 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 punishment may be in its effects, may be considered as irremissible. This is the case, for example, with whipping, branding, mutilation, and capital punishment. The most perfectly irremissible of any is capital punishment. 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 approbation or disapprobation can arise only from a confused 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 punishment possesses these different qualities.

If a conclusion is drawn from one of these qualities 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 punishments 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}
[RP, Book I, Chapter VI] [RP, Book I, Chapter VIII]