The Rationale of Punishment

Book IV

Proper Seat of Punishment

Section I

In regard to such punishment as comes under the denomination of derivative or naturally extravasating punishment, the following seem to be the rules that may be laid down.

1. The consideration that the lot of punishment in question comes under the denomination of derivative or extravasating punishment---punishment overflowing upon the guiltless from the guilty---can never of itself constitute a sufficient reason for, forbearing to inflict such punishment.

For were that a sufficient reason, punishment could not, in the way of legislation, be appointed in any case.

2. In so far as punishment not coming under this denomination is capable of being inflicted to a sufficient amount, without the addition of any punishment which comes under this denomination, in other words, in as far as properly seated punishment to a sufficient amount is capable of being inflicted without the addition of derivative or extravasating punishment, no such addition ought by the legislator to be appointed, viz. either prescribed or authorized.

3. For so far as, without prejudice to the sufficiency of the remainder, the lot of punishment actually to be inflicted is capable of being cleared of derivative or extravasated punishment (punishment or suffering borne by those who have had no share either in the commission of the offense or in the benefit of the offense)---such clearance ought always to be made.

4. In the account taken of the suffering for the purpose of any punishment which is about to be inflicted by the Judge, such derivative suffering ought always to be comprised: comprised, in the first place, in respect of what it is in itself and of itself; in the next place, in respect of the pain which, if inflicted on the innocent connexions of the guilty person, it may be expected to produce, viz. in the shape of a pain of sympathy, in the bosom of the guilty person himself.

5. Accordingly, in the case of a delinquent having such connections, to the end that the real quantity of punishment may not be greater than in the case of a delinquent in the same degree of delinquency having no such connections, the nominal may be,----and so far as the deduction is capable of being made with sufficient precision, ought to be,---made by so much the less.

6. For the purpose of making any such allowance as maybe requisite on this score, proceed thus: In the first place, settle with yourself what would be a sufficient punishment, on the supposition that the delinquent had no connexions: then, enquiring into such connexions, if any, as he has, proceed to make such abatement, if any, as may be requisite on this score.

7. For any such purpose, the view of the Judge must not absolutely confine itself to the connexion itself, the outward and visible sign and presumptive evidence of the internal and invisible sympathy, viz. the fact that the delinquent has a wife, has children, has other persons in his dependence. Of the existence of the degree of sympathy naturally and usually attached to the species of relationship in question, the existence of the relationship itself may, it is true, be received in the character of primâ facie or presumptive evidence. Such evidence as, in default of evidence to the contrary, may be taken for conclusive.

But supposing any such contrary evidence to be offered, or to be capable of being, without preponderant inconvenience, collected, such presumptive evidence as above mentioned ought not to be taken and acted upon as if conclusive.

If for example it appear that in consequence of ill usage inflicted by him, his wife has been separated from him, it is not right that, on that account, he should be let of with a less punishment, merely because he has a wife: if it appear that, in consequence of ill usage, or desertion, or neglect, on his part, children of his have been taken in hand and provided for by some relation or private friend, or some public institution, it is not right that, merely because he has children, he should be let off with a less punishment, as above.

8. In so far as it is in the nature of the punishment to extract and provide any quantity of matter applicable to the purpose of compensation, the legislator and the Judge, respectively acting within their respective spheres, ought not, in the care taken by them to avoid the production of unnecessary mis-seated punishment, to confine themselves to negative measures.

If, for example, either by the general nature of the appointed punishment, imprisonment, for example, or banishment, or death, a separation is made, or to the purpose in question, by special appointment, can be made, between the lot of the delinquent and the lot of his guiltless connexions, it may be right, out of and to the extent of the pecuniary means of the delinquent, to make a provision for his guiltless connexions.

9. In other words. So far as can be done, without reducing to too low a pitch the suffering inflicted on the delinquent, the claims of any guiltless connexion of his, to be saved harmless from such mis-seated punishment, as would otherwise be made to overflow upon them from the punishment inflicted upon him, should have the preference over the interest of the public purse.

This rule may, without reserve or difficulty, be in its full extent applied to ordinary creditors, to persons whose connexion with the delinquent is accordingly a connexion purely in the way of interest, unaccompanied with any such connection as in the case of wife and children, or other near relatives, has place in the way of sympathy. For example, to speak particularly and precisely, on the score and for the purpose of punishment, money extracted from the pocket of a delinquent ought not to be poured into the public purse, such sum excepted as, if any, remains to be disposed of, after satisfaction of all just and bona fide demands made, or capable of being made, by creditors.

[RP, Book IV] [RP, Book IV, §2]