I. We have seen that the general object of all laws is to prevent mischief; that is to say, when it is worth while; but that, where there are no other means of doing this than punishment, there are four cases in which it is not worth while.
II. When it is worth while, there are four subordinate designs or objects, which, in the course of his endeavours to compass, as far as may be, that one general object, a legislator, whose views are governed by the principle of utility, comes naturally to propose to himself.
III. 1. His first, most extensive, and most eligible object, is to prevent, in as far as it is possible, and worth while, all sorts of offenses whatsoever: in other words, so to manage, that no offense whatsoever may be committed.
IV. 2. But if a man must needs commit an offense of some kind or other, the next object is to induce him to commit an offense less mischievous, rather than one more mischievous: in other words, to choose always the least mischievous, of two offenses that will either of them suit his purpose.
V. 3. When a man has resolved upon a particular offense, the next object is to dispose him to do no more mischief than is necessary to his purpose: in other words, to do as little mischief as is consistent with the benefit he has in view.
VI. 4. The last object is, whatever the mischief be, which it is proposed to prevent, to prevent it at as cheap a rate as possible.
VII. Subservient to these four objects, or purposes, must be the rules or canons by which the proportion of punishments to offenses is to be governed.
VIII. Rule 1. The first object, it has been seen, is to prevent, in as far as it is worth while, all sorts of offenses; therefore,
The value of the punishment must not less in any case than what is sufficient to outweigh that of the profit of the offense.
If it be, the offence (unless some other considerations, independent of the punishment should intervene and operate efficaciously in the character of tutelary motives) will be sure to be to committed notwithstanding: the whole lot of punishment will be thrown away: it will be altogether inefficacious.
IX. The above rule has been often objected to, on account of its seeming harshness: but this can only have happened for want of its being properly understood. The strength of the temptation, cæteris paribas, is as the profit of the offense: the quantum of the punishment must rise with the profit of the offense: cæteris paribas, it must therefore rise with the strength of the temptation. This there is no disputing. True it is, that the stronger the temptation, the less conclusive is the indication which the act of delinquency affords of the depravity of the offender's disposition. So far then as the absence of any aggravation, arising from extraordinary depravity of disposition, may operate, or at the utmost, so far as the presence of a ground of extenuation, resulting from the innocence or beneficence of the offender's disposition, can operate, the strength of the temptation may operate in abatement of the demand for punishment. But it can never operate so far as to indicate the propriety of making the punishment ineffectual, which it is sure to be when brought below the level of the apparent profit of the offense.
The partial benevolence which should prevail for the reduction of it below this level, would counteract as well those purposes which such a motive would actually have in view, as those more extensive purposes which benevolence ought to have in view: it would be cruelty not only to the public, but to the very persons in whose behalf it pleads: in its effects, I mean, however opposite in its intention. Cruelty to the public, that is cruelty to the innocent, by suffering them, for want of an adequate protection, to lie exposed to the mischief of the offense: cruelty even to the offender himself, by punishing him to no purpose, and without the chance of compassing that beneficial end, by which alone the introduction of the evil of punishment is to be justified.
X. Rule 2. But whether a given offence shall be prevented in a given degree by a given quantity of punishment, is never any thing better than a chance; for the purchasing of which, whatever punishment is employed, is so much expended into advance. However, for the sake of giving it the better chance of outweighing the profit of the offence,
The greater the mischief of the offense, the greater is the expense which it may be worth while to be at, in the way of punishment.
XI. Rule 3. The next object is, to induce a man to choose always the least mischievous of two offenses; therefore,
Where two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less.
XII. Rule 4. When a man has resolved upon a particular offense, the next object is, to induce him to do no more mischief than what is necessary for his purpose: therefore
The punishment should be adjusted in such manner to each particular offence, that for every part of the mischief there may be a motive to restrain the offender frown giving birth to it.
XIII. Rule 5. The last object is, whatever mischief is guarded against, to guard against it at as cheap a rate as possible: therefore
The punishment ought in no case to be more than what is necessary to bring it into conformity with the rules here given.
XIV. Rule 6. It is further to be observed, that owing to the different manners and degrees in which persons under different circumstances are affected by the same exciting cause, a punishment which is the same in name will not always either really produce, or even so much as appear to others to produce, in two different persons the same degree of pain: therefore
That the quantity actually indicted on each individual offender nay correspond to the quantity intended for similar offenders in general, the several circumstances influencing sensibility ought always to be taken into account.
XV. Of the above rules of proportion, the first four, we may perceive serve to mark out limits on the side of diminution; the limits below which a punishment ought not to be diminished: the fifth the limits on the side of increase; the limits above which it ought not to be increased. The five first are calculated to serve as guides to the legislator: the sixth is calculated in some measure, indeed, to the same purpose; but principally for guiding the judge in his endeavors to conform, on both sides, to the intentions of the legislator.
XVI. Let us look back a little. The first rule, in order to render it more conveniently applicable to practice, may need perhaps to be a little more particularly unfolded. It is to be observed, then, that for the sake of accuracy, it was necessary, instead of the word quantity to make use of the less perspicuous term value. For the word quantity will not properly include and the circumstances either of certainty or proximity: circumstances which, in estimating the value of a lot of pain or 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 offense is a lot of pleasure, or what is equivalent to it. But the profit of the offense 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 offense, 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.
XVII. Yet farther. To make sure of giving the value of the punishment the superiority over that of the offence, it may be of necessary, in some cases, to take into account the profit not only of the individual offence to which the punishment is to be annexed, but also of such other offences of the same sort as the offender is likely to have already 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 not 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. Rule 7. These things being considered, the three following rules may be laid down by way of supplement and explanation to Rule 1.
To enable the value of the punishment to outweigh that of the profit of the offense, it must be increased, in point of magnitude, in proportion as it falls short in point of certainty.
XIX. Rule 8. Punishment must be further increased in point of magnitude, in proportion as it falls short in point of proximity.
XX. Rule 9. Where the act is conclusively indicative of a habit, such an increase must be given to the punishment as may enable it to outweigh the profit not only of the individual offence, but of such other like offenses as are likely to have been committed with impunity by the same offender.
XXI. There may be a few other circumstances or considerations which may influence, in some small degree, the demand for punishment: but as the propriety of these is either not so demonstrable, or not so constant, or the application 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.
XXII. Rule 10. When a punishment, which in point of quality is particularly well calculated to answer its intention cannot exist in less than a certain quantity, it may 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.
XXIII. Rule 11. In particular, this may sometimes be the case, where the punishment proposed is of such a nature as to be particularly well calculated to answer the purpose of a moral lesson.
XXIV. Rule 12. The tendency of the above considerations is to dictate an augmentation in the punishment: the following rule operates in the way of diminution. There are certain cases (it has been seen) in which, by the influence of accidental circumstances, punishment may be rendered unprofitable 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 minute any set of provisions are, the greater the chance is that any given article in them will not be borne in mind: without which, no benefit can 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 provisions designed to perfect the proportion between punishments and offences, if any occur, which, by their own particular good effects, would not make up for the harm they would do by adding to the intricacy of the Code, they should be omitted.
XXVI. It may be remembered, that the political sanction, being that to which the sort of punishment belongs, which in this chapter is all along in view, is but one of four sanctions, which may all of them contribute their share towards producing the same effects. It maybe expected, therefore, that in adjusting the quantity of political punishment, allowance should be made for the assistance it may meet with from those other controlling 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) 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, and value. The legislator is therefore obliged to provide the full complement of punishment, as if he were sure of not receiving any assistance whatever from any of those quarters. If he does, so much the better: but lest 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 the several circumstances, which, in establishing the proportion betwixt punishments and offenses, are to be attended to. These seem to be as follows:
I. On the part of the offence:
XXVIII. There are some, perhaps, who, at first sight, may look upon the nicety employed in the adjustment of such rules, as so much labour lost: for gross ignorance, they will say, never, troubles itself about laws, and passion does not calculate. 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. 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 mean that which corresponds 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.