The Rationale of Punishment

Book V


Chapter I


We have before observed that a penal act is not simple in its effects, does not produce one single evil, that it produces many masses of evil at once. A punishment, considered as an act, may be simple, considered in its effects, complex.

A man is imprisoned, here is a simple punishment as respects the act on the part of the Judge: but as respects the individual the evils resulting from it may be very various, affecting in different ways his fortune, his person, his reputation and his condition in life.

A simple punishment is that which is produced by a single act of punishment: a compound punishment, is that which requires more than one operation; the punishment for an offense may include imprisonment, a fine, a mark of infamy, &c. if all these are announced by the law; if each of these punishments is expressed by a clear and familiar term, the punishment, though compound or complex, may be a good one.

Improper complex punishments are those of which the integral parts are not known, those which include evils that the law does not announce, which are only expressed by obscure and enigmatical names which do not exhibit their penal nature in clear characters, and which are only understood by lawyers; of this kind are transportation---felony with and without benefit of clergy---præmunire outlawry---excommunication---incompetency as a witness, and many others.

Everything which is uncertain, everything which is obscure, offends against the first condition in framing a good law.

The inconveniences attached to complex punishments when thus defined are very great, but they may be explained in a few words---the legislator knows not what he does---the subject knows not what is meant by the punishment threatened.---It becomes impossible for the legislator to do what is proper in each case, he therefore does either too much or too little---every obscure expression veils from his eyes the nature of the punishment or punishments he employs: he strikes blindfolded, and scatters suffering at hazard.---The Jury and the Judges who witness the inconveniences of the law in each particular case, allow themselves to employ all possible means to avoid them, they usurp the authority of the legislator, and perjury becomes the habitual palliative of his injustice or improvidence.

If the law is executed, what happens?---the Judge in inflicting one useful punishment, is obliged to inflict a multitude of useless punishments:---punishments of which the offenders had only an imperfect idea, which produce mischief in pure waste, oftentimes the mischief spreads over persons who are entire strangers to the offence, and the consequences are such that the legislator would have trembled had he foreseen them.

We have already spoken of incompetency as a witness, we shall now direct our attention to the other punishments above-named.

[RP, Book IV, §9] [RP, Book V, Chapter II]