which, in estimating the value of a lot of pain or '' — v — ' pleasure, must always be taken into the account*. Now, on the one hand, a lot of punishment is a lot of pain; on the other hand, the profit of an offence is a lot of pleasure, or what is equivalent to it. But the profit of the offence is commonly more certain than the punishment, or, what comes to the same thing, appears so at least to the offender. It is at any rate commonly more immediate. It follows, therefore, that, in order to maintain its superiority over the profit of the offence, the punishment must have its value made up in some other way, in proportion to that whereby it falls short in the two points of certainty and proximity. Now there is no other way in which it can receive any addition to its 'value, but by receiving an addition in point of magnitude. Wherever then the value of the punishment falls short, either in point of certainty, or of proximity, of that of the profit of the offence, it must receive a proportionable addition in point of magnitude f.
Yet farther. To make sure of giving the value Also, into of the punishment the superiority over that or the of the mis- * See ch. iv, [Value.]
fit is for this reason, for example, that simple compensation is never looked upon as sufficient punishment for theft or robbery.
Cha p. offence, it may be necessary, in some cases, to take ^rTv---' into the account the profit not only of the indivicnief, and -"^ •' profit of the ^^^^/ offence to which the punishment is to be oite.ice, the ^ mischief anncxcd, but also of such other offences of the and profit of other of- same sort as the offender is hkely to have already the same committed without detection. This random mode of calculation, severe as it is, it will be impossible to avoid having recourse to, in certain cases: in such, to wit, in which the profit is pecuniary, the chance of detection very small, and the obnoxious act of such, a nature as indicates a habit: for example, in the case of frauds against the coin. If it be 7iot recurred to, the practice of committing the offence will be sure to be, upon the balance of the account, a gainful practice. That being the case, the legislator will be absolutely sure of not being able to suppress it, and the whole punishment that is bestowed upon it will be thrown away. In a word (to keep to the same expressions we set out with) that whole quantity of punishment will be inefficacious.
XVIII.
XVIII.
Rule 7. Rule 7. These things beinff considered, the three fol- Want of ^.
certainty lowiug rulcs may be laid down by way of supplemade up b ment and explanation to Rule 1.
magnitude.
To enable the value of the punishmeiit to outweigh that oj the profit of the offence, it must be encreased, in point of magnitude^ in proportion as it falls short in point of cei^tainty.
XIX.
Rule 8. Punishment must be further encreased in point of Rule 8.
magnitude^ in proportion as it jails snort in point of of proximity. proj:imiti/.
XX.
Rule 9- Where the act is conclusively indicative of a habit, ^^^^^^Xv such an encrease must be given to the punishment ^-^ J|lS?'^u°^* may enable it to outweigh the profit not only of the "'sh ^ for individual offetice, but of such other like offences as are likely to have been committed with impunity by the same offender.
XXI.
There may be a few other circumstances or 7^^ '■^™^'"* •" ing rules are considerations which may influence, in some small "f 'es* ""- '' ^ portauce.
degree, the demand for punishment: but as the propriety of these is either not so demonstrable, or not so constant, or the appUcation of them not so determinate, as that of the foregoing, it may be doubted whether they be worth putting on a level with the others.
Rule 10. When a punishment, which in point of quality is ^"le lo. particularly well calculated to answer its intention, of quality, increase in cannot exist m less than a certain quantity, it may quantity. sometimes be of use, for the sake of employing it, to stretch a little beyond that quantity which, on other accounts, would be strictly necessary.
*^ OF THE PROPORTION BETWEEN Rule 11. Rule 11. In particular^ this may sometimes be the case.
Particularly.
for a moral whcrx the pumshmoit proposed is of such a nature as to be particularly well calculated to answer the purpose of a moral lesson*.
Rule 12. Rule 12. The tendency of the above considerations is to Attend to, circumstan- dictatc au augmentation in the punishment: the may render followiiig Tule opcratcs in the Way of diminution. unprofitable. Thcrc Eic cei'taiu cases (it has been seenf) in which, by the influence of accidental circumstances, punishment may be rendered unprofit- A punish- * A punishment may be said to be calculated to answer ment ap plied by the purpose of a moral lesson, when, by reason of the ig-"'^^?f nomy it stamps upon the offence, it is calculated to inspire what. the public with sentiments of aversion towards those pernicious habits and dispositions with which the offence appears to be connected; and thereby to inculcate the opposite beneficial habits and dispositions. Example. — It is this, for example, if any thing, that must justify the corponil application of so severe a punishment as the infamy of a injuries. public exhibition, hereinafter proposed, for him who lifts up his hand against a woman, or against his father. See B. I, tit. [Simp, corporal injuries.] Example— It is partly on this principle, I suppose, that mihtary iTw?' '^"'^^ legislators have justified to themselves the inflicting death on the soldier who lifts up his hand against his superior officer.
t See ch. xiii. [Cases unmeet.] ^ 4.
able in the whole: in the same cases it may chance to be rendered unprofitable as to a part only. Accordingly, In adjusting the quantum of punishment, the circumstances, by which all punishment may be rendered unprofitable, ought to be attended to.
XXV.
Rule 13.
It is to be observed, that the more various and R"ie i3. mmute any set of pro^^slons are, the greater the city's sake, chance is that any given article in them will not proportions be borne in mind: without which, no benefit can Hegkcted. ensue from it. Distinctions, which are more complex than what the conceptions of those whose conduct it is designed to influence can take in, will even be worse than useless. The whole system will present a confused appearance: and thus the effect, not only of the proportions established by the articles in question, but of whatever is connected with them, will be destroyed*. To draw a precise line of direction in such case seems impossible. However, by way of memento, it may be of some use to subjoin the following rule.
Among prwisions designed to perfect the proportion between punishments and offences, if any occur, which, by their own particular good effects, would See B. II. tit. [Purposes.] Append, tit. [Composition.]
not make up for the harm they would do by adding to the intricacy of the Code, they should be omitted*.
Auxiliary It mav be remembered, that the political sanephysical, tion, being that to which the sort of punishment moral, and religious bclongs, which in this chapter is all along in view, here allowed is but onc of four sanctions, which may all of them ^' contribute their share towards producing the same effects. It may be expected, therefore, that in adjusting the quantity of political punishment, allowance should be made for the assistance it may meet with from those other controuling powers. True it is, that from each of these several sources a very powerful assistance may sometimes be derived. But the case is, that (setting aside the moral sanction, in the case where the force of it is expressly adopted into and modified by the political f) the force of those other powers is never determinate enough to be depended upon. It can never be reduced, like political punishment, into exact lots, nor meted out in number, quantity.
Proportion- * Notwithstanding this rule, my fear is, that in the very far'in ^^^uing model, I may be thought to have carried my enthe presint deavours at proportionality too far. Hitherto scarce any attention has been paid to it. Montesquieu seems to have been almost the first who has had the least idea of any such thing. In such a matter, therefore, excess seemed more eligible than defect. The difficulty is to invent: that done, if any thing seems superfluous, it is easy to retrench.
t See B. I. tit. [Punishments.]
and value. The legislator is therefore obliged to provide the full complement of punishment, as if he were sure of not receiving any assistance w^hatever from any of those quarters. If he does, so much the better: but least he should not, it is necessary he should, at all events, make that provision which depends upon himself, xxvii. It may be of use, in this place, to recapitulate Becapituiathe several circumstances, which, in establishing the proportion betwixt punishments and offences, are to be attended to. These seem to be as follows: I. On the part of the offence: 1. The profit of the offence; 2. The mischief of the offence; 3. The profit and mischief of other greater or lesser offences, of different sorts, which the offender may have to choose out of; 4. The profit and mischief of other offences, of the same sort, which the same offender may probably have been guilty of already.
II. On the part of the punishment: 5. The magnitude of the punishment: composed of its intensity and duration; 6. The deficiency of the punishment in point of certainty; 7. The deficiency of the punishment in point of proximity; 8. The quality of the punishment; 9. The accidental advantage in point of quality of a punishment, not strictly needed in point of quantity; 10. The use of a punishment of a particular quality, in the character of a moral lesson.
III. On the part of the offender: 1 1. The responsibility of the class of persons in a way to offend; 1 2. The sensibility of each particular offender \ 13. The particular merits or useful quahties of any particular offender, in case of a punishment which might deprive the community of the benefit of them; 14. The multitude of offenders on any particular occasion.
IV. On the part of the public^ at any particular conjuncture; 15. The inclinations of the people, for or against any quantity or mode of punishment; 16. The inchnations of foreign powers.
V. On the part of the law: that is, of the pubUc for a continuance: 1 7. The necessity of making small sacrifices, in point of proportionahty, for the sake of simplicity.
XXVIII.
The nicety Thcrc are some, perhaps, who, at first sight, here ob- ^ ^ may look upon the nicety employed in the adjust- Chap. ment of such rules, as so much labour lost: for ' — sr-^^, served vingross ignorance, they will say, never troubles djcatedfrom itself about laws, and passion does not calculate, ot inutility. But the evil of ignorance admits of cure *: and as to the proposition that passion does not calculate, this like most of these very general and oracular propositions, is not true. When matters of such importance as pain and pleasure are at stake, and these in the highest degree (the only matters, in short, that can be of importance) who is there that does not calculate? Men calculate, some with less exactness, indeed, some with more: but all men calculate. I would not say, that even a madman does not calculate f. Passion calculates, more or less, in every man; in different men, according to the warmth or coolness of their dispositions: according to the firmness or irritability of their minds: according to the nature of the motives by which they are acted upon. Happily, of all passions, that is the most given to calculation, from the excesses of which, by reason of its strength, constancy, and universality, society has most to apprehend I: I mean that which corres- * See Append, tit. [Promulgation.]
t There are few madmen but what are observed to be afraid of the strait waistcoat.
X See ch. xii. [Consequences.] xxxiii.
S? ^ OF THE PROPORTION BETWEEN, Sec.
ponds to the motive of pecuniary interest: so that these niceties, if such they are to be called, have the best chance of being efficacious, where efficacy is of the most importance.
CHAP. XV.
OF THE PROPERTIES TO BE GIVEN TO A LOT OF PUNISHMENT.
I.
It has been shewn what the rules are, which properties ought to be observed in adjusting the proportion ^g^nej b^"* between the punishment and the offence. The p™?"'^*'""* properties to be given to a lot of punishment, in every instance, will of course be such as it stands in need of, in order to be capable of being applied, in conformity to those rules: the quality will be regulated by the quantity.
II. The first of those rules, we may remember, p,operty i. was, that the quantity of punishment must not be ^'^''"^^^">'-less, in any case, than what is sufficient to outweigh the profit of the offence: since, as often as it is less, the whole lot (unless by accident the deficiency should be supplied from some of the other sanctions) is thrown away: it is inefficacious. The fifth was, that the punishment ought in no case to be more than what is required by the several other rules: since, if it be, all that is above that quantity is needless. The fourth was, that the punishment should be adjusted in such manner to each individvial offence, that every part of the mischief of that offence may have a penalty (that is, a tutelary motive) to encounter it: other- VOL. II. D VOL. II. D wise, with respect to so much of the offence as has not a penalty to correspond to it, it is as if there were no punishment in the case. Now to none of those rules can a lot of punishment be conformable, unless, for every variation in point of quantity, in the mischief of the species of offence to which it is annexed, such lot of punishment admits of a correspondent variation. To prove this, let the profit of the offence admit of a multitude of degrees. Suppose it, then, at any one of these degrees: if the punishment be less than what is suitable to that degree, it will be inefficacious; it will be so much thrown away: if it be more, as far as the difference extends, it will be needless; it will therefore be thrown away also in that case.
The first property, therefore, that ought to be given to a lot of punishment, is that of being variable in point of quantity, in conformity to every variation which can take place in either the profit or mischief of the offence. This property might, perhaps, be termed, in a single word, variability.
III. Property 2. A sccoud property, intimately connected with Equability...the former, may be stiled equability. It will avail but little, that a mode of punishment (proper in all other respects) has been established by the legislator; and that capable of being screwed up or let down to any degree that can be required; if, after all, whatever degree of it be pitched upon.
that same degree shall be liable, according to cir- c^a^p. cumstances, to produce a very heavy degree of ' ^ ' pain, or a very slight one, or even none at all. In this case, as in the former, if circumstances happen one way, there will be a great deal of pain produced which will be iieedkss: if the other way, there will be no pain at all applied, or none that will be ejfficaciuus. A punishment, when liable to this irregularity, may be stiled an unequable one: when free from it, an equable one. The quantity of pain produced by the punishment will, it is true, depend in a considerable degree upon circumstances distinct from the nature of the punishment itself: upon the condition which the offender is in, with respect to the circumstances by which a man's sensibility is liable to be influenced. But the influence of these very circumstances will in many cases be reciprocally influenced by the nature of the punishment: in other words, the pain which is produced by any mode of punishment, will be the joint effect of the punishment which is applied to him, and the circumstances in which he is exposed to it. Now there are some punishments, of which the effect may be liable to undergo a greater alteration by the influence of such foreign circumstances, than the effect of other punishments is liable to undergo. So far, then, as this is the case, equability or unequability may be regarded as properties belonging to the punishment itself.
IV.
IV.
Punish- ^^^ example of a mode of punishment which is ments which ^pt to be uncQuable, is that of banishment, when be deficient the locus tt quo (or placc the party is banished spect. from) is some determinate place appointed by the law, which perhaps the offender cares not whether he ever see or no. This is also the case with pecuniary, or quasi-pecuniary punishment, when it respects some particular species of property, which the offender may have been possessed of, or not, as it may happen. All these punishments may be split down into parcels, and measured out with the utmost nicety: being divisible by time, at least, if by nothing else. They are not, therefore, any of them defective in point of variability: and yet, in many cases, this defect in point of equability may make them as unfit for use as if they were*.
V.
Property 3. The third rule of proportion was, that where Commensurabiiity to two offcnccs couic iu couipctitiou, the punishment otlier pu-..
nishments. for the greater offence must be sufficient to in- * By the English law, there are several offences which are punished by a total forfeiture of moveables, not extending to immoveables. This is the case with suicide, and with certain species of theft and homicide. In some cases, this is the principal punishment: in others, even the only one. The consequence is, that if a man's fortune happens to consist in moveables, he is ruined; if in immoveables, he suffers nothing.
duce a man to prefer the less. Now, to be sufficient for this purpose, it must be evidently and uniformly greater: greater, not in the eyes of some men only, but of all men who are liable to be in a situation to take their choice between the two offences; that is, in effect, of all mankind. In other words, the two punishments must be perfectly commensurable. Hence arises a third property, which may be termed comynensavabUity: to wit, with reference to other punishments*.
VI.
But punishments of different kinds are in very How two few instances uniformly greater one than another; nishment' may be renperespecially when the lowest degrees of that which dered is ordinarily the greater, are compared with the menJiSe. highest degrees of that which is ordinarily the less: in other words, punishments of different kinds are in few instances uniformly commensurable. The only certain and universal means of making two lots of punishment perfectly commensurable, is by making the lesser an ingredient * See View of the Hard-Labour Bill. Lond, 1778.
For the idea of this property, I must acknowledge myself indebted to an anonymous letter in the St. James's Chronicle, of the 27th of September 1777; the author of which is totally unknown to me. If any one should be disposed to think lightly of the instruction, on account of the channel by which it was first communicated, let him tell me where I can find an idea more ingenious or original.
Chap, in the composition of the greater. This may be ^— -V — ' done in either of two ways. 1. By adding to the lesser punishment another quantity of punishment of the same kind. 2. By adding to it another quantity of a different kind. The latter mode is not less certain than the former: for though one cannot always be absolutely sure, that to the same person a given punishment will appear greater than another given punishment; yet one may be always absolutely sure, that any given punishment, so as it does but come into contemplation, will appear greater than none at all.
VII.
Property 4. Affaiu: Punishmcut cannot act any farther Character- ^ _, / isticaiiie.ss. thaii ill as far as the idea of it, and of its connection with the offence, is present in the mind. The idea of it, if not present, cannot act at all; and then the punishment itself must be inefficacious. Now, to be present, it must be remembered, and to be remembered it must have been learnt. But of ail punishments that can be imagined, there are none of which the connection with the offence is either so easily learnt, or so efficaciously remembered, as those of which the idea is already in part associated with some part of the idea of the offence: which is the case when the one and the other have some circumstance that belongs to them in common. When this is the case with a punishment and an offence, the punishment is said to bear an analogy to, or to be characteristic of.
the offence*. Characteridicalness \s, therefore, a Chap.
fourth property, which on this account ought to ' — v — ' be given, whenever it can conveniently be given, to a lot of punishment.
It is obvious, that the effect of this contrivance The mode ot will be the greater, as the analogy is the closer. rh"e"mosr'' The analogy will be the closer, the more material^ ci?aracte^ that circumstance is, which is in common. Now ofretaiia*"^* the most material circumstance that can belong *'°"* to an offence and a punishment in common, is the hurt or damage which they produce. The closest analogy, therefore, that can subsist between an offence and tlie punishment annexed to it, is that which subsists between them when the hurt or damage they produce is of the same nature: in other words, that which is constituted by the circumstance of identity in point of damage;|;. Accordingly, the mode of punishment, which of all others bears the closest analogy to the offence, is that which in the proper and exact sense of the * See Montesq. Esp. des Loix. L. xii. ch. iv. He seems to have the property of characteristicalness in view; but that the idea he had of it was very indistinct, appears from the extravagant advantages he attributes to it.
t See ch. vii. [Actions.] iii.
X Besides this, there are a variety of other ways in which the punishment may bear an analogy to the offence. This will be seen by looking over the table of punishments.
word is termed retaliation. Retaliation, therefore, in the few cases in which it is practicable, and not too expensive, will have one great advantage over every other mode of punishment.
IX.
Properly 5. Again: It is the idea only of the punishment rity. (or, m other words, the apparent punishment) that really acts upon the mind; the punishment itself (the real punishment) acts not any farther than as giAing rise to that idea. It is the apparent punishment, therefore, that does all the service, I mean in the way of example, which is the principal object*. It is the real punishment that does all the mischief f. Now the ordinary and obvious way of increasing the magnitude of the apparent punishment, is by increasing the magnitude of the real. The apparent magnitude, however, may to a certain degree be increased by other less expensive means: whenever, therefore, at the same time that these less expensive means would have answered that purpose, an additional real punishment is employed, this additional real punishment is needless. As to these less expensive means, they consist, 1. In the choice of a particular mode of punishment, a punishment of a particular quality, independent of the quantity \. 2. In a particular set of solemnities distinct from * See ch. xiii. [Cases unmeet] §1,2. note, t lb. § 4. par. iii. I See B. I. tit. [Punishments.]
the punishment itself, and accompanying the Cuav. execution of it*. ' — v — ' X.
A mode of punishment, according as the ap- The most efpearance oi it bears a greater proportion to the ofrendering reahty, may be said to be the more exemplary. menteVera-Now as to what concerns the choice of the veins' of ^ punishment itself, there is not any means by ^"^"SJ* which a given quantity of punishment can be rendered more exemplary, than by choosing it of such a sort as shall bear an analogy to the offence. Hence another reason for rendering the punishment analogous to, or in other words characteristic of, the offence.
XI.
Punishment, it is still to be remembered, is in property 6» itself an expence: it is in itself an eyilf. Accord- ''"^^'*^* ingly the fifth rule of proportion is, not to produce more of it than what is demanded by the other rules. But this is the case as often as any particle of pain is produced, which contributes nothing to the effect proposed. Now if any mode of punishment is more apt than another to produce any such superfluous and needless pain, it may be styled uufrugal; if less, it may be styled frugal. Frugality, therefore, is a sixth property to be wished for in a mode of punishment.
* See B. II. tit. [Execution.] t Ch. xiii. [Cases vmmeet] par. ii.
Chap. vti FiT^iit"' ^^^^ perfection of frugality, in a mode of belongs in punishment, is where not only no superfluous perfection ^ J r to pecuniary pain is produccd on the part of the person punished, but even that same operation, by which he is subjected to pain, is made to answer the purpose of producing pleasure on the part of some other person. Understand a profit or stock of pleasure of the self-regarding kind: for a pleasure of the dissocial kind is produced almost of course, on the part of all persons in whose breasts the offence has excited the sentiment of ill-will. Now this is the case with pecuniary punishment, as also with such punishments of the quasi-pecuniary kind as consist in the substraction of such a species of possession as is transferable from one party to another. The pleasure, indeed, produced by such an operation, is not in general equal to the pain*: it may, however, be so in particular circumstances, as where he, from whom the thing is taken, is very rich, and he, to whom it is given, very poor: and, be it what it will, it is always so much more than can be produced by any other mode of punishment.
Exempiariiy fhe properties of exemplarity and frugality lity in what seem to pursuc the same immediate end, thoue-h they differ, ^...and agree, by different courses. Both are occupied in dimi- * lb. nole.
nishing the ratio of the real suffering to the apparent: but exemplarity tends to increase the apparent; frugality to reduce the real.
XIV.
Thus much concerning the properties to be Other pro- " ■'••'■ perties of given to punishments in general, to whatsoever inferior imoffences they are to be applied. Those which follow are of less importance, either as referring only to certain offences in particular, or depending upon the influence of transitory and local circumstances.
In the first place, the four distinct ends into which the main and general end of punishment is divisible*, may give rise to so many distinct properties, according as any particular mode of punishment appears to be more particularly adapted to the compassing of one or of another of those ends. To that of e.iwnple, as being the principal one, a particular property has already been adapted. There remain the three inferior ones of reformation f disablement, and compensation.
XV.
A seventh property, therefore, to be wished for Property 7, Subsei' villi a mode of punishment, is that of subserviency to ency to rereformation, or reforming tendency. Now any punishment is subservient to reformation in proportion to its quantity: since the greater the punishment a man has experienced, the stronger * See ch.' xiii. [Cases unmeet] par. ii. note.
C"^p. is the tendency it has to create in him an aversion ^~"v — ' towards the offence which was the cause of it: and that with respect to all offences alike. But there are certain punishments which, with regard to certain offences, have a particular tendency to produce that effect by reason of their qualify: and where this is the case, the punishments in question, as applied to the offences in question, will^?'o trmto have the advantage over all others. This influence will depend upon the nature of the motive which is the cause of the offence: the punishment most subservient to reformation will be the sort of punishment that is best calculated to invalidate the force of that motive.
XVI.
XVI.
—applied Thus, iu offcuccs Originating from the motive oHgii'albg of ill-will*, that punishment has the strongest reforming tendency, which is best calculated to weaken the force of the irascible affections. And more particularly, in that sort of offence which consists in an obstinate refusal, on the part of the offender, to do something which is lawfully required of himf, and in which the obstinacy is in great measure kept up by his resentment against those who have an interest in forcing liim to compliance, the most efficacious punishment seems to be that of confinement to spare diet.
* See ch. x. [Motives.] t SeeB. I. tit. [Oftences against Justice.]
Thus, also, in offences which owe their birth to ^ ^ —to oiicnces the ioint influence of indolence and pecuniary?''s'"at"'g interest, that punishment seems to possess thejo'ned/o strongest reforming tendency, which is best cal- interest. culated to weaken the force of the former of those dispositions. And more particularly, in the cases of theft, embezzlement, and every species of defraudment, the mode of punishment best adapted to this purpose seems, in most cases, to be that of penal labour.
XVIII.
An eighth property to be given to a lot of Property 8. punishment in certain cases, is that of efficacy wi'h respect with respect to disablement, or, as it might be stiled ment. more briefly, disabling efficacy. This is a property which may be given in perfection to a lot of punishment; and that with much greater certainty than the property of subserviency to reformation. The inconvenience is, that this property is apt, in general, to run counter to that of frugality: there being, in most cases, no certain way of disabling a man from doing mischief, without, at the same time, disabling him, in a great ineasure, from doing good, either to himself or others. The mischief therefore of the offence must be so great as to demand a very considerable lot of punishment, for the purpose of example, before it can warrant the application of a punish- '*^ OF THE PROPERTIES TO BE GIVEN TO ^'^'*''- ment equal to that which is necessary for the "^ "^ ' purpose of disablement.
XIX.
—is most The punishment, of which the efficacy in this conspicuous ^ •' in capital way is the greatest, is evidently that of death.
In this case the efficacy of it is certain. This accordingly is the punishment peculiarly adapted to those cases in which the name of the offender, so long as he lives, may be sufficient to keep a whole nation in a flame. This will now and then be the case with competitors for the sovereignty, and leaders of the factions in civil wars: though, when applied to offences of so questionable a nature, in which the question concerning criminality turns more upon success than any thing else; an infliction of this sort may seem more to savour of hostility than punishment. At the same time this punishment, it is evident, is in an eminent degree unfnigal; which forms one among the many objections there are against the use of it, in any but very extraordinary cases*.
XX.
Other pu- jj^ ordinary cases the purpose may be suffinishinents •' x x.'
in which ciently answered by one or other of the various lound. kinds of confinement and banishment: of which, imprisonment is the most strict and efficacious. For when an offence is so circumstanced that it cannot be committed but in a certain place, as is * See B. I. tit. [Punishments,] the case, for the most part, with offences against 9j^^-the person, all the law has to do, in order to ' "^ ' disable the offender from committing it, is to prevent his being in that place. In any of the offences which consist in the breach or the abuse of any kind of trust, the purpose may be compassed at a still cheaper rate, merely by forfeiture of the trust: and in general, in any of those offences which can only be committed under favour of some relation in which the offender stands with reference to any person, or sets of persons, merely by forfeiture of that relation: that is, of the right of continuing to reap the advantages belonging to it. This is the case, for instance, with any of those offences which consist in an abuse of the privileges of marriage, or of the liberty of carrying on any lucrative or other occupation.
XXI.
The ninth property is that of subserviency to Property 9. compensation. This property of punishment, if it encjTocombe vindictive compensation that is in view, will, f"^*^"°"-with little variation, be in proportion to the quantity: if lucrative, it is the peculiar and characteristic property of pecuniary punishment.
In the rear of all these properties may be P'qintroduced that of popularity; a very fleeting and Popularity. indeterminate kind of property, which may belong to a lot of punishment one moment, and be lost ^^ A LOT OF PUNISHMENT.
by it the next. By popularity is meant the property of being acceptable, or rather not unacceptable, to the bulk of the people, among whom it is proposed to be established. In strictness of speech, it should rather be called absence of unpopularity: for it cannot be expected, in regard to such a matter as punishment, tliat any species or lot of it should be positively acceptable and grateful to the people: it is sufficient, for th^*^ most part, if they have no decided aversion to the thoughts of it. Now the property of characteristicalness, above noticed, seems to go as far towards conciliating the approbation of the people to a mode of punishment, as any; insomuch that popularity may be regarded as a kind of secondary quality, depending upon that of characteristicalness *. The use of inserting this property in the cataloguej is chiefly to make it serve by way of memento to the legislator not to introduce, without a cogent necessity, any mode or lot of punishment, towards which he happens to perceive any Character- * '^^^ property of eharacteristicalness, therefore, is useful isticalness in a mode of punishment in three different ways: 1. It renders a...punishment, renders a mode of punishment, before infliction, more easy bie'"^2'"ex- *^ ^^ borne in mind: 2. It enables it, especially after inflicemplar_y: tion, to make the stronger impression, when it is there; that is, renders it the more exemplary: 3. It tends to render it more acceptable to the people, that is, it renders it the more popular.
violent aversion entertained by the body of the people.