The Rationale of Punishment

Book IV

Proper Seat of Punishment

Section VI


From what has been said, except in the above case of rebellion, it will be pretty apparent that in point of certainty this mode of punishment is eminently deficient. In by far the greater number of cases in which the offense has been committed, this punishment cannot take place for want of a subject on which to operate. A man that has no wife or children, cannot be punished in the persons of his wife and children. Couple this circumstance with the cases in which the offender will have nothing to forfeit, and it will be found that the punishment will be inoperative in nine hundred and ninety-nine cases out of a thousand. Now a punishment that is good in one case only out of a thousand is good for nothing. Some other punishment then must be adopted in its room. This punishment must be as much as is enough in those cases, otherwise there had as good be none. Now then as that punishment serves in all other cases, why may it not in this one? If it is enough in those cases, it is, when added to the particular punishment in question, more than enough in this one. Now then, if it is more than enough, it is misery in waste. It is, therefore, for the most part useless, and whenever it is not useless, it is mischievous.

2. After this it is saying little to observe, that in respect of equability it is not less defective, because, to a man who has no thought about his wife or children, or has taken a dislike to them, it is at least matter of indifference to him whatever may befall them; in this therefore the punishment of them is so much clear waste.

3. In respect of Frugality it is in a very remarkable degree defective, the quantity of evil that it is susceptible of producing is altogether boundless. Consider the chain of domestic connection, and calculate the number of descendants that a man may have; the suffering communicates from one to another, and destroys the peace of the most extensive families. To produce a direct punishment, which may be estimated as unity, indirect and mis-seated punishment must be created equal to ten, twenty, thirty, a hundred, or perhaps, a thousand, &c.

4. It is no less deficient in point of exemplarity. What the delinquent himself suffers is known always by the sentence, it is in many cases visible in the execution. The woman or the child who is made to suffer for his crime, languishes in secret and unavailing misery.

5. The punishment thus withdrawn from its natural course, possesses not so much as the advantage of popularity; it is directly adverse to the general sentiments of sympathy and antipathy. When the delinquent himself is punished, the public vengeance is satiated, and receives no satisfaction from any ulterior punishment, if he is pursued beyond the tomb, and his innocent family are offered up as victims, feelings of pity are excited; an indistinct feeling accuses the laws of injustice, humanity declares itself against them, and on all sides the respect for the laws is weakened.

[RP, Book IV, §5] [RP, Book IV, §7]