The Rationale of Punishment

Book I

General Principles

Chapter VIII

Of Analogy between Crimes and Punishments

The same Instrument used in the Crime as in the Punishment.

Incendiarism, inundation, poisoning—in these crimes the instrument employed is the first circumstance which strikes the mind In their punishment, the same instrument may be employed.

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 destruction, 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 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 determine 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 punishment. 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 countries 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 perpetrated, and the cool determination which it supposes. Of these two circumstances, the first increases the force of temptation and the evil of the crime; the second, proves that the criminal, attentive 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 necessary 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 distortions, it may prove hateful.

If the poison administered by the criminal has not proved fatal, he may be made to take an antidote before the penal poison has produced death. The dose and the time may be fixed by the Judges; according to the report of skillful 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 punishment, which possesses so striking an analogy with the crime, would be most suitable.

[RP, Book I, Chapter VIII] [RP, Book I, Chapter VIII, §2]