Of all the punishments which can be appointed by the law, there is none but what, from one accident or other, is liable to fail. It is obvious that against such an event it becomes the law, in every case, to make provision. Such a failure may arise from either of two causes: unwillingness, that is, want of will to bear the punishment; or inability, that is, want of power.
The first cause, if no steps were taken to control it, would naturally occasion the failure of all punishments, the execution of which is dependant upon the will of the party to be punished. This among corporal punishments, is the case with all such as are either active or restrictive, one case of restrictive punishment excepted, that, to wit, in which the restraint is produced by physical means.
To give efficacy, therefore, to the mandate, of which any of these punishments is intended as the sanction, it is absolutely necessary that some further punishment should be appointed to back it through the whole of its continuance. In the first instance, this backing or subsidiary punishment as it may be called, may be taken from those two classes, as well as from the other; and so through any number of instances, one behind another. A punishment of the active kind, for instance, might be backed by quasi-imprisonment; that again by banishment; or any one of those punishments, for a certain term, by the same, or another, (kind of punishment) for a further term. Ultimately, however, every such series must be terminated by some punishment that may be inflicted without the concurrence of the party's will; that is, by some punishment of the passive kind; or if of the restrictive kind, by such restraint as is compassed by physical means.
Even such punishments, to the execution of which (so the party be forthcoming) the concurrence of the party is not essentially necessary, may fail from his want of power, or in other words, from his inability to sustain them. This is the case with all corporal punishments not capital, that affect any parts of the body that are not essential to life. It is the case, therefore, with simply afflictive punishments, and with discolourment, disfigurement, disablement, and mutilation, in as far as they affect any of the parts just spoken of. It is also the case with forfeitures of all kinds. The only punishments therefore that are sure, and require no others to be subjoined to them, are the above-mentioned corporal punishments, in the cases where the parts they affect are such as are essential to life; imprisonment, and such punishments, by which life itself is taken away.
Even these, like any others, may come to fail by the want of will, (in the party to sustain them) to wit, by his not choosing to be forthcoming, which is a cause of failure common to all punishments; but then this cause does not necessarily produce its effect: it does not render the punishment of the man necessarily dependent upon his will, for-he may be taken and punished in spite of his wishes and endeavours to prevent it; which, when a man does suffer any of these punishments, especially death, and those other acute and heavy punishments, is generally the case. In this case, the only resource is in forfeitures, upon the contingency of a man's having anything to forfeit, that is, within the reach of justice, or in the punishment of those whose feelings are connected with his own by sympathy, as in punishments in alienam personam.
From the differences above-remarked respecting the cause of failure in the punishment first-designed, results a difference in what ought to be the quantity of the subsidiary punishment, concerning which we may lay down the following rules:---
Rule I. Where inability is manifestly the only cause of failure, the subsidiary punishment should be neither greater nor less than that which was first designed. For no reason can be given why it should be either less or greater.
Rule II. Where want of will is manifestly the only cause of failure, the subsidiary punishment ought to be greater than that which was first designed. For the punishment first designed is that which by the supposition is thought the best: to determine the delinquent then to submit to this, in preference to the other, there is but one way, which is, to make that other punishment the greater.
Rule III. When the cause of failure may be want of power, or want of will, as it may happen, and it cannot be known which, the subsidiary punishment ought to be greater than the punishment first designed, but not so much greater as in the case last mentioned. This is apt to be the case with pecuniary forfeitures. If, however, it can be ascertained which of these is the cause, it ought always to be done, otherwise, on the one hand, he who fails from mere inability, will be punished more than there is occasion; and he who fails wilfully, not enough.
When a man fails wilfully to submit to the punishment first designed for him, such a failure may be considered in the light of an offence. Viewing it in this light, we shall immediately see the propriety of the following rule.
Rule IV. The subsidiary punishment ought to be made the greater, the easier it is for the delinquent to avoid the punishment first designed (without being detected and made amenable). For the punishment, to he efficacious, must always be greater than the temptation to the offense; and the temptation to the offense is the greater, the greater is the uncertainty of that punishment which is the motive that weighs against the profit of the offense.
Imprisonment is the most convenient and natural kind of subsidiary punishment, in cases where the offender cannot or will not submit to a pecuniary punishment. A circumstance that renders these two modes of punishment particularly apt for being substituted to each other, is their divisibility: they admit of every degree that can be desired.
Simple afflictive punishments, on account of the infamy they involve, cannot in general be eligibly employed as substitutes for pecuniary punishments. in case of violation of boundaries of local confinement, the most eligible substitute is imprisonment. A single act of transgression may be taken as a sufficient warning that the penal mandate is not meant to be regarded.
Laborious punishments require an uninterrupted train of attention, in order to compel the delinquent to submit to them. A constant supply of fresh motives is required: to produce the desired effect, it is necessary therefore that these motives should be drawn from a stock of punishment that is susceptible of minute division, and capable of being applied at the moment it is wanted. Thus, whenever an Inspector is appointed in a House of Correction in which the individuals confined are employed in hard labour, power is tacitly given to him to inflict personal correction. The infamy by which it is accompanied, is not an objection: because, by the principal punishment---the penal labour---an equal degree of infamy is produced.
We have already observed, that to pecuniary punishment, in case of inability on the part of the patient, ought to be substituted imprisonment.
But by what standard are we to estimate a sum of money by a sum of imprisonment---for what debt, or part of a debt, is each day's imprisonment to be reckoned as an equivalent?
Let us say that the amount of the debt struck off by each day's imprisonment shall be equal to what each day the patient might have earned, had he remained in a state of liberty. The daily income of a mechanic, sailor, soldier, artist, labourer, servant, may be calculated according to the wages of persons employed in the same profession.
The daily income of a farmer may be estimated according to the 365th part of the rent of his farm. If, besides his farm, he is engaged in any other line of business, the daily benefit arising from that business must be added to the income arising from his farm.
The revenue of a man who is not engaged in any business, or is not a manufacturer, may be calculated as being eight times the rent of his house. If he is a manufacturer, at four times the rent of his house. If he is engaged in trade, at six times that rent.
The revenue of a man that boards and lodges in the house of another, may be estimated at double the sum that he so pays. If he lodges only, at four times that sum. If he is supported gratuitously in the house of a relation, as equal to the value of his board and lodging. {Example}
The points that then require to be determined, are the three following:---
The more exalted a man's rank, the greater in general are his annual outgoings; the greater, consequently, ought to be the debt abolished by a given period of imprisonment.
I confine myself then to the laying down the principles upon which the calculation may be made: the details of their application belong more properly to the Penal Code than to a work on punishment.