The effects of unpopularity in a mode of pu- Mischiefs nishment are analogous to those of unfrugality. from the un-The unnecessary pain which denominates a pu- or a"puniihnishment unfrugal, is most apt to be that which "ntent '** is produced on the part of the offender. A portion p™°pie/and of superfluous pain is in like manner produced ^^^J^^^^ '" when the punishment is unpopular: but in this case it is produced on the part of persons altogether innocent, the people at large. This is already one mischief; and another is, the weakness which it is apt to introduce into the law. When the people are satisfied with the law, they voluntarily lend their assistance in the execution: when they are dissatisfied, they will naturally withhold that assistance; it is well if they do not take a positive part in raising impediments. This contributes greatly to the uncertainty of the punishment; by which, in the first instance, the frequency of the offence receives an increase. In process of time that deficiency, as usual, is apt to draw on an encrease in magnitude: an addition of a certain quantity which otherwise would be needless*.
This property, it is to be observed, necessarily This property sup- * See ch. xiii. [Cases unmeet] § v. VOL. II. E cure ^^y- supposes, on the part of the people, some preju-,^77""^ (lice or other, which it is the business of the learisposes a pre- ' o judice which ij^itor to eudeavour to correct. For if the aversion the legislator oufrht to to the punishment in question were grounded on the principle of utility, the punishment would be such as, on other accounts, ought not to be employed: in which case its popularity or unpopularity would never be worth drawing into question. It is properly therefore a property not so much of the punishment as of the people: a disposition to entertain an unreasonable dislike against an object which merits their approbation. It is the sign also of another property, to wit, indolence or weakness, on the part of the legislator: in suffering the people, for the want of some instruction, which ought to be and might be given them, to quarrel with their own interest. Be this as it may, so long as any such dissatisfaction subsists, it behoves the legislator to have an eye to it, as much as if it were ever so well grounded. Every nation is liable to have its prejudices and its caprices, which it is the business of the legislator to look out for, to study, and to cure * XXV.
Propertjii. The eleventh and last of all the properties that Remissibi-...in • i lity. seem to be requisite m a lot oi punishment, is See ch. xiii. [Cases unmeet] ^ iv. par. iv.
that of remissibility*. The general presumption is, that when punishment is applied, punishment is needful: that it ought to be applied, and therefore cannot want to be remitted. But in veryparticular, and those always very deplorable cases, it may by accident happen otherwise. It may happen that punishment shall have been inflicted, where, according to the intention of the law itself, it ought not to have been inflicted: that is, where the sufferer is innocent of the offence. At the time of the sentence passed he appeared guilty: but since then, accident has brought his innocence to light. This being the case, so much of the destined punishment as he has suffered already, there is no help for. The business is then to free him fi-om as much as is yet to come. But is there any yet to come? There is very little chance of their being any, unless it be so much as consists of chronical punishment: such as imprisonment, banishment, penal labour, and the like. So much as consists in acute punishment, to wit where the penal process itself is over presently, however permanent the punishment may be in its effects, may be considered as /^remissible. This is the case, for example, with whipping, branding, mutilation, and capital punishment. The most perfectly irremissible of any is capital punishment. For though other punishments can- * See View of the Hard Labour Bill, p. 109.
5^ OF THE PROPERTIES TO BE GIVEN TO not, when they are over, be remitted, they may be compensated for; and although the unfortunate victim cannot be put into the same condition, yet possibly means may be found of putting him into as good a condition, as he would have been in if he had never suffered. This may in general be done very effectually where the punishment has been no other than pecuniary.
There is another case in which the property of remissibility may appear to be of use: this is, where, although the offender has been justly punished, yet on account of some good behaviour of his, displayed at a time subsequent to that of the commencement of the punishment, it may seem expedient to remit a part of it. But this it can scarcely be, if the proportion of the punishment is, in other respects, what it ought to be. The purpose of example is the more important object, in comparison of that of reformatian*. It is not very likely, that less punishment should be required for the former purpose than for the latter. For it must be rather an extraordinary case, if a punishment, which is sufficient to deter a man who has only thought of it for a fewmoments, should not be sufficient to deter a man who has been feeling it all the time. Whatever, then, is required for the purpose of example, must abide at all events: it is not any reformation * See ch xiii. [Cases unmeet] ii. note.
A LOT OF PUNISHMENT. •'•^ on the part of the offender, that can warrant the ^^'^l*-remitting of any part of it: if it could, a man "^ ^ ' would have nothing to do but to reform immediately, and so free himself from the greatest part of that punishment which was deemed necessary. In order, then, to warrant the remitting of any part of a punishment upon this ground, it must first be supposed that the punishment at first appointed was more than was necessary for the purpose of example, and consequently that a part of it was needless upon the whole. This, indeed, is apt enough to be the case, under the imperfect systems that are as yet on foot: and therefore, during the continuance of those systems, the property of remissibility may, on this second ground likewise, as well as on the former, be deemed a useful one. But this would not be the case in any new-constructed system, in which the rules of proportion above laid down should be observed. In such a system, therefore, the utility of this property would rest solely on the former ground.
Upon taking a survey of the various possible To obtain . all these modes of punishment, it will appear evidently, properties,...r> 1 1 punishments that there is not any one oi them that possesses must be all the above properties in perfection. To do the best that can be done in the way of punishment, it will therefore be necessary, upon most occasions, to compound them, and make them into complex lots, each consisting of a number of different modes of punishment put together: the nature ii* OF THE PROPERTIES TO BE GIVEN TO and proportions of the constituent parts of each lot being different, according to the nature of the offence which it is designed to combat.
XXVII.
The forego- It may not be amiss to bring together, and ties recapi- exhibit ill one view, the eleven properties above established. They are as follows: Two of them are concerned in establishing a proper proportion between a single offence and its punishment; viz.
1. Variability.
2. Equability.
One, in establishing a proportion, between more offences than one, and more punishments than one; viz.
3. Commensurability.
A fourth contributes to place the punishment in that situation in which alone it can be efficacious; and at the same time to be bestowing on it the two farther properties of exemplarity and popularity; viz.
4. Characteristicalness.
Two others are concerned in excluding all useless punishment; the one indirectly, by heightening the efficacy of what is useful; the other in a direct way; viz.
5. Exemplarity.
6. Frugality.
Three others contribute severally to the three inferior ends of punishment; viz.
7. Subserviency to reformation.
8. Efficacy in disabling.
9. Subserviency to compensation.. Another property tends to exclude a collateral mischief, which a particular mode of punishment is liable accidentally to produce; viz.
10. Popularity.
The remaining property tends to palliate a mischief, which all punishment, as such, is liable accidentally to produce; viz.
1 1. Remissibility.
The properties of commensurability, characteristicalness, exemplarity, subserviency to reformation, and efficacy in disabling, are more particularly calculated to augment the profit which is to be made by punishment: frugality, subserviency to compensation, popularity, and remissibility, to diminish the eTpence: variability and equability are alike subservient to both those purposes.
XXVIII.
We now come to take a general survey of c°"'!^*^^'.°" the system of oifences: that is, of such acts to t^e ensuing which, on account of the mischievous consequences they have a natural tendency to produce, and in the view of putting a stop to those consequences, it may be proper to annex a certain artificial consequence, consisting of punishment, to be inflicted on the authors of such acts, according to the principles just established.
CHAP. XVI.
§ I. CLASSES OF OFFENCES. I.
Distinctiou *It is necessary, at the outset, to make a distincbetween wimtare tioii between such acts as are or may be, and offences and •-' what ought to be.
Method * This chapter is an attempt to put our ideas of offences the following ^'^ to an exact method. I he particular uses ot method are divisions, various: but the general one is, to enable men to understand the things that are the subjects of it. To understand a thing, is to be acquainted with its qualities or properties. Of these properties, some are common to it with other things; the rest, peculiar. But the qualities which are peculiar to any one sort of thing are few indeed, in comparison with those which are common to it with other things. To make it known in respect of its difference, would, therefore be doing little, unless it were made known also by its genus. To understand it perfectly, a man must therefore be informed of the points in which it agrees, as well as of those in which it disagrees, with all other things. When a number of objects, composing a logical whole, are to be considered together, all of these possessing with respect to one another a certain congruency or agreement denoted by a certain name, there is but one way of giving a perfect knowledge of their nature; and that is, by distributing them into a system of parcels, each of them a part, either of some other parcel, or, at any rate, of the common whole. This can only be done in the way of bipartition, dividing each superior branch into two, and but two, immediately subordinate ones; begining with the logical whole, dividing that into two parts, then such as ought to be offences. Any act may be an offence, which they whom the community are in each of those parts into two others; and so on. These firstdistinguished parts agree in respect of those properties which belong to the whole: they differ in respect of those properties which are peculiar to each. To divide the whole into more than two parcels at once, for example into three, would not answer the purpose; for, in fact, it is but two objects that the mind can compare together exactly at the same time. Thus then, let us endeavour to deal with offences; o^ rather, strictly speaking, with acts which possess such properties as seem to indicate them fit to be constituted offences. The task is arduous; and, as yet at least, perhaps for ever, above our force. There is no speaking of objects but by their names: but the business of giving them names has always been prior to the true and perfect knowledge of their natures. Objects the most dissimilar have been spoken of and treated as if their properties were the same. Objects the most similar have been spoken of and treated as if they had scarce any thing in common. Whatever discoveries may be made concerning them, how different soever their congruencies and disagreements may be found to be from those which are indicated by their names, it is not without the utmost difficulty that any means can be found out of expressing those discoveries by a conformable set of names.
Change the import of the old names, and you are in perpetual danger of being misunderstood: introduce an intire new set of names, and you are sure not to be understood at all. Complete success, then, is, as yet at least, unattainable. But an attempt, though imperfect, may have its use: and, at the worst, it may accelerate the arrival of that perfect system, the possession of which will be the happiness of some maturer age. Gross ignorance descries no difficulties; imthe habit of obeying shall be pleased to make one: that is, any act which they shall be pleased to prohibit or to punish. But, upon the principle of utility, such acts alone ought to be made offences, as the good of the community requires should be made so.
II. No act The good of the community cannot require, an offence that auy act should be made an offence, which is detrimental not liable, iu somc way or other, to be detrimunity. mental to the community. For in the case of such an act, all punishment is groundless*.
III. To be so. it But if the whole assemblage of any number of triraentai to mdividuals be considered as constituting an imaginary compound body, a community or political state; any act that is detrimental to any one or more of those members is, as to so much of its effects, detrimental to the state.
IV.
These may An act caunot bc detrimental to a state, but be assignable or not. by being detrimental to some one or more of the individuals that compose it. But these individuals may either be assignable^ or unassignable.
perfect knowledge finds them out, and struggles with them: it must be perfect knowledge that overcomes them. * See ch. xiii. [Cases unmeet] § ii, 1. Persons t [Assignable.] That is, either by name, or at least by assignable, description, in such manner as to be sufficiently distinguished some ore or more of its members.
y Chap.
XVI.
When there is any assignable individual to jj: — v — ' whom an offence is detrimental, that person may ^^^^' ^'j^ °^'- ^ •' fender himeither be a person other than the offender, or the ^^jf. or others.
offender himself.
VI.
Offences that are detrimental, in the first in- Class i.
Private ofstance, to assignable persons other than the of- fences. fender, may be termed by one common name, offences against individuals. And of these may be composed the 1st class of offences. To contrast them with offences of the 2d and 4th classes, it may also sometimes be convenient to stile them private offences. To contrast them at the same time with offences of the 3d class, they may be stiled private ejctra-regardiug offences.
VII.
When it appears, in general, that there are Class 2.
persons to whom the act m question may be de- offences. trimental, but such persons cannot be individually assigned, the circle within which it appears that they may be found, is either of less extent than that which comprizes the whole community, or not. If of less, the persons comprized within this lesser circle may be considered for this purpose as composing a body of themselves; from all others; for instance, by the circumstance of being the owner or occupier of such and such goods. See B. I. tit. [Personation.] Supra, ch. xii. [Consequences] xv.
^'^^J"- comprized within, but distinguishable from, the — ^' — ' greater body of the whole community. The circumstance that constitutes the union between the members of this lesser body, may be either their residence within a particular place, or, in short, any other less explicit principle of union, which may serve to distinguish them from the remaining members of the community. In the first case, the act may be stiled an offence against a neighbourliood: in the second, an offence against a particular class of persons in the community. Offences, then, against a class or neighbourhood, may, together, constitute the 2d class of offences*. To contrast them with private offences on the one hand, and public on the other, they may also be stiled semi-public offences.
Limits be- * With regard to offences against a class or neighbourvate sciuU "^00^ > ^t is evident, that the fewer the individuals are, of public, and which such class is composed, and the narrower that neighfences, are, bourhood is, the more likely are the persons, to whom the speaknie offence is detrimental, to become assignable; insomuch that, undis- in some cases, it may be difficult to determine concerning a given oflence, whether it be an onence against individuals, or against a class or neighbourhood. It is evident also, that the larger the class or neighbourhood is, the more it approaches to a coincidence with the great body of the state. The three classes, therefore, are liable, to a certain degree, to run into one another, and be confounded. But this is no more than what is the case, more or less, with all those ideal compartments under which men are wont to distribute objects for the convenience of discourse.
CLASSES OF OFFENCES. ^^ XVI.
Offences, which in the first instance are detri- 'TT'^t^ ' Class o.
mental to the offender himself, and to no one else, Seii-regardunless it be by their being detrimental to himself, may serve to compose a third class. To contrast them the better with offences of the first, second, and fourth classes, all which are of a transitive nature, they might be stiled intransitive* offences; but still better, self -regarding.
IX.
The fourth class may be composed of such acts Class 4.
as ought to be made offences, on account of the fences. distant mischief which they threaten to bring upon an unassignable indefinite multitude of the whole number of individuals, of which the community is composed: although no particular individual should appear more likely to be a sufferer by them than another. These may be called public offences, or offences against the state.
X.
A fifth class, or appendix, may be composed of Ciass 5.
such acts as, according to the circumstances in offences, viz.
1» Offences which they are committed, and more particularly by falsehood Q Offences according to the purposes to which they are against trust. applied, may be detrimental in any one of the ways in which the act of one man can be detrimental to another. These may be termed multiform, or heterogeneous offences j;. Offences that * See ch. vii. [Actions] xiii.
t 1. Offences hy falsehood: 2. Offences against trust. See '[^»|f jer- ^^J^' are in this case may be reduced to two great — ^-^ — ' heads: 1. Offences hy falsehood: and, 2. Offences against trust.
language an also par. XX. to XXX. and par. LXVI. Maturer views arranee^- ° have Suggested the feasibility, and the means, of ridding ment. the system of this anomalous excrescence. Instead of considering these as so many divisions of offences, divided into genera, correspondent and collateral to the several genera distinguished by other appellations, they may be considered as so many specific differences, respectively applicable to those genera. Thus, in the case of a simple personal injury, in the operation of which a plan of falsehood has been employed: it seems more simple and more natural, to consider the offence thus committed as a particular species or modification of the genus of offence termed a simple personal injury, than to consider the simple personal injury, when effected by such means, as a modification of the division of offences entitled Offences through falsehood. By this means the circumstances of the intervention of falsehood as an instrument, and of the existence of a particular obligation of the nature of a trust, will be reduced to a par with various other classes of circumstances capable of affording grounds of modification, commonly of aggravation or extenuation, to various genera of oft'ences: instance, Fremeditation, and conspiracy, on the one hand; Provocation received, and intoxication, on the other. This class will appear, but too plainly, as a kind of botch in comparison of the rest. But such is the fate of science, and more particularly of the moral branch; the distribution of things must in a great measure be dependent on their names: arrangement, the work of mature reflection, must be ruled by nomenclature, the work of popular caprice.
In the book of the laws, offences must therefore be treated XI.
Let us see by what method these classes may Divisions of Class 1.
be farther sub-divided. First, then, with regard i. offences offences against individuals. son.'2— Proof as much as possible under their accustomed names. Generical terms, which are in continual use, and which express ideas for which there are no other terras in use, cannot safely be discarded. When any such occur, which cannot be brought to quadrate with such a plan of classification as appears to be most convenient upon the whole, what then is to be done? There seems to be but one thing; which is, to retain them, and annex them to the regular part of the system in the form of an appendix. Though they cannot, when entire, be made to rank under any of the classes established in the rest of the system, the divisions to which they give title may be broken down into lesser divisions, which may not be alike intractable. By this means, how discordant soever with the rest of the system they may appear to be at first sight, on a closer inspection they may be found conformable.
This must inevitably be the case with the names of offences, Irregularity which are so various and universal in their nature, as to be °^ ''^'^ '^'^*^' capable, each of them, of doing whatever mischief can be done by any other kind or kinds of offences whatsoever. Offences of this description may well be called anomalous.
Such offences, it is plain, cannot but shew themselves —which equally intractable under every kind of system. Upon what- *^"".'j "°' ^® ever principle the system be constructed, they cannot, any any other of them, with any degree of propriety, be confined to any ^ one division. If, therefore, they constitute a blemish in the present system, it is such a blemish as could not be avoided but at the expence of a greater. The class they are here Chap. Jn the present period of existence, a man's ' — y:r^ being and well-being, his happiness and his se- Reputation. curity ', in a word, his pleasures and his immunity tion. 5- Per- from paius, are all dependant, more or less, in son and pro- ^ perty.— 6. the first placc, upon his own person; in the next reputation, placc, upoH the eiterwr objects that surround him. These objects are either things, or other persons. Under one or other of these classes must evidently be comprised every sort of exterior object, by means of which his interest can be affected. If then, by means of any offence, a man should on any occasion become a sufferer, it must be in one or other of two ways: 1. absolutely, to wit, immediately in his own person; in which case the offence may be said to be an offence against his person: or, 2. relatively by reason of some material^-^ relation which he bears to the beforethrown into will traverse, in its subordinate ramifiGations, the other classes and divisions of the present system: true, but so would they of any other. An irregularity, and that but a superficial one, is a less evil than continual error and contradiction. But even this slight deviation, which the fashion of language seemed to render unavoidable at the outset, we shall soon find occasion to correct as we advance. For though the first great parcels into which the offences of this class are divided are not referable, any of tliem, to any of the former classes, yet the subsequent lesser subdivisions are.
* See ch. vii. [Actions] iii. and xxiv. In what t I^> '^y reason of the word relation, this part of the divimanner ^\q^ should appear obscure, the unknown term may be got CLASSES OF OFFENCES. ©5 mentioned exterior objects may happen to bear, in Cuav. the way of casuality (See eh. vii. Actions, par. 24.) ' — v— to his happiness. Now in as far as a man is in a rid of in the following manner. Our ideas are derived, all ^"d P^'^ «^^-of them, from the senses; pleasurable and painful ones, the relation therefore, among the rest: consequently, from the operation °o'^^"eriIr" of sensible objects upon our senses. A man's happiness, object*, then, may be said to depend more or less upon the relation he bears to any sensible object, when such subject is in a way that stands a chance, greater or less, of producing to him, or averting from him, pain or pleasure. Now this, if at all, it must do in one or other of two ways; 1. In an active vidi^, properly so called; viz. by motion: or, 1. In a ■passive or quiescent way, by being moved to, or acted upon: and in either case, either, 1. in an immediate way, by acting upon, or being acted on by, the organs of sense, without the intervention of any other external object: or, y. in a more or less remote way, by acting upon, or being acted on by, some other external object, which (with the intervention of a greater or less number of such objects, and at the end of more or less considerable intervals of time) will come at length to act upon, or be acted upon by, those organs. And this is equally true, whether the external objects in question be things or persons. It is also equally true of pains and pleasures of the mind, as those of the body: all the difference is, that in the production of these, the pleasure or pain may result immediately from the perception which it accompanies; in the production of those of the mind, it cannot result from the action of an object of sense, any otherwise than by association; to wit, by means of some connection which the perception has contracted with certain prior ones, lodged already in the memory *.
• See cl:. V. [Pleasures and Pains] xv. xxxi. Ch. i. [Motives] xxxlx. uute. VOL. n. F Chap, ^yay to deiivc either happiness or security from ' — ^' — ' any object which belongs to the class of things, such thing is said to be his proper tij, or at least he is said to have a property or an interest therein: an offence, therefore, which tends to lessen the facility he might otherwise have of deriving happiness or security from an object which belongs to the class of things, may be stiled an oiFence against his property. With regard to persons, in as far as, from objects of this class, a man is in a way to derive happiness or security, it is in virtue of their services: in virtue of some services, which, by one sort of inducement or another, they may be disposed to render him*. Now, then, take any man, by way of example, and the disposition, whatever it may be, which he may be in to render you service, either has no other connection to give birth or support to it, than the general one which binds him to the whole species, or it has some other connection more particular. In the latter case, such a connection may be spoken of as constituting, in your favour, a kind of fictitious or incorporeal object of property, which is stiled your condition. An offence, therefore, the tendency of which is to lessen the facility you might otherwise have of deriving happiness from the services of a person thus specially connected with you, may be stiled See cli. X. [Motives.]
an offence against your condition in life, or simply Chap. against your condition. Conditions in life must ' — v — ' evidently be as various as the relations by which they are constituted. This will be seen more particularly farther on. In the mean time, those of husband, wife, parent, child, master, servant, citizen of such or such a city, natural-born subject, of such or such a country, may answer the purpose of examples.
Where there is no such particular connection, or (what comes to the same thing) where the disposition, whatever it may be, which a man is in to render you service, is not considered as depending upon such connection, but simply upon the good-will he bears to you: in such case, in order to express what chance you have of deriving a benefit from his services, a kind of fictitious object of property is spoken of, as being constituted in your favour, and is called your repuiation. An offence, therefore, the tendency of which is to lessen the facility you might otherwise have had of deriving happiness or security from the services of persons at large, whether connected with you or not by any special tie, may be stiled an offence against your reputation. It appears, therefore, that if by any offence an individual becomes a sufferer, it must be in one or other of the four points above-mentioned; viz. his person, his property, his condition in life, or his reputation. These sources of distinction then.
may serve to form so many subordinate divisions. If any offences should be found to affect a person in more than one of these points at the same time, such offences may respectively be put under so many separate divisions; and such compound divisions may be subjoined to the preceding simple ones. The several divisions (simple and compound together) which are hereinafter established, stand as follows: 1. Offences against person. 2. Offences against reputation. 3. Offences against property. 4. Offences against condition. 5. Offences against person and ]>roperty together. 6. Offences against person and reputation together *.
XII.
Divisions of Next with regard to semi-public offences. Pain, 1. Offences cousidcred with reference to the time of the act limit'y.'' *^* from which it is liable to issue, must, it is evident, be either present, past, or future. In as far as it * Subsequent consideration has here suggested several alterations. The necessity of adding, to property, power, in the character of a distinguishable as well as valuable object or subject-matter of possession, has presented itself to view: and in regard to the fictitious entity here termed condition (for shortness instead of saying condition in life,) \thzs been observed to be a sort of composite object, compounded of property, reputation, power, and right to services. For this composite object the more proper place was therefore at the tail of the several simple ones I^ote by the Editor, J-uly, CLASSES OF OFFENCES. ^^ is either present or past, it cannot be the result of any act which comes under the description of a semi-pubhc offence: for if it be present or past, the individuals who experience, or who have experienced, it are assignable*. There remains that sort of mischief, which, if it ever come to exist at all, is as yet but future: mischief, thus circumstanced, takes the name of danger f. Now, then, when by means of the act of any person a whole neighbomrhood, or other class of persons, are exposed to danger, this danger must either be intentional on his part, or unintentional %. If unintentional, such danger, when it is converted into actual mischief, takes the name of a calamity '■ offences, productive of such danger, may be stiled semi-public offences operating through calamity: or, more briefly, offences through calamity. If the danger be intentional, in so much that it might be produced, and might convert itself into actual mischief, without the concurrence of any calamity, it may be said to originate in mere delinquency: offences, then, which, without the concurrence of any calamity, tend to produce such danger as disturbs the security of a local, or other subordinate class of persons, may be stiled semi-publi<^ offences operating max'ly by delinquency, or more briefly, offences of mere delinquency.
Supra, iv, note. t See ch. xii. [Consequences.]
I See ch. viii. [Intentionality.]
Cha I', XVI.
CLASSES) OF OFFENCES.