The Rationale of Punishment

Book II

Of Corporal Punishments

Chapter XII

Section III


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 preventing further mischief from the same source.
  4. It is exemplary, producing a more lively impression than any other mode of punishment.

The two first of these properties exist in the case of capital punishment when applied to murder; and with reference to that species of offense alone are they sufficient reasons for persevering in its use; certainly not: each of them, separately considered, is 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 recommendation: the value of this property amounts to 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 observations 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 preventing further mischief from the same source, is somewhat 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 indiscriminately 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 circumstances. Yet it is never thought necessary that madmen should he 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, 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 conscientious nature, which is a danger almost peculiar 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 offenses 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 successor. Look, said the executioner, to an aged Irishman, 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 before he appoints capital punishment, even in this case, to reflect on this instructive lesson.

The fourth reason is the strongest. The punishment of death is exemplary, pre-eminently exemplary: 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 produce a deeper impression on the minds of persons 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 circumstances that render death less formidable to them, render laborious restraint proportionably more irksome. The more their habitual state of existence 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 inclinations.

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, 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 punishment of death, in consideration of the effects it produces in terrorum, it ought to be confined to offenses 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 numbers; and in these cases expedients by which it may be made to assume the most tragic appearance may be safely resorted to, in the greatest extent possible, without having recourse to complicated torments.

[RP, Book II, Chapter XII, §2] [RP, Book II, Chapter XII, §4]