1

from the point of view of the state; and so we come to punishment proper. Punishment is "an evil resulting to an individual from the direct intention of another, on account of some act that appears to have been done or omitted." Its object is to prevent the commission of like offences, whether on the part of the same offender or of others. The great springs of human action are pleasure and pain. A would-be offender contemplating the perpetration of a certain crime will be restrained therefrom when the "value" of the pain (including the attributes of intensity, proximity, certainty, and duration), implied in the penalty imposed, appears to him to exceed the apparent value of the pleasure or good he expects to be the consequence of the act. With respect to a given individual, the repetition of an offence may be provided against by depriving him of the physical power of offending, by taking away the desire of offending (moral reformation), by making him afraid of offending (intimidation, or terror of the law). Physical incapacitation is the appropriate course where the crime committed by the delinquent is such as is productive of great alarm, or manifests a very mischievous disposition. Reformative or intimidating measures are more applicable when the offence, being less dangerous, justifies only a transient punishment, and it is possible for the offender to return to society. The chief end of punishment, together with its real justification, is general prevention. If any offence that has been committed could be regarded as an isolated incident, the like of which would never recur, punishment would be useless; for it would be only adding one evil to another. Punishment should not be an act of anger, resentment, or vengeance, but an indispensable sacrifice to the common safety. (There is little more than merely apparent inconsistency between Bentham's views expressed here and those indicated above, in regard to the relationship between retributive "justice" and utility; but where, as will be seen presently, there is a conflict between these two principles, he does not hesitate to make "justice" subservient to the demands of utility.)

Cases unmeet for punishment are as follows: Where punishment is groundless, that is where there is no real offence (e.g. when consent is freely and fairly given), or where the evil is more than compensated by an attendant good (e.g. in the exercise of 2 Ibid.

1 Works, vol. i, p. 390.

2 Treatise, chap. i; Works, chap. iii. • Works, vol. i, p. 396.

legal authority, self-defence, etc.), or in imaginary offences due to prejudice, antipathy, the ascetic principle, etc. (e.g. heresy, witchcraft); where punishment is inefficacious, in having no power to affect the will (e.g. for acts due to ignorance, infancy, insanity, intoxication, duress); where it is needless (that is where the same end may be attained by milder means, such as instruction, example, etc.); and lastly, where it is unprofitable or too costly (that is if the evil of the punishment exceeds that of the offence, so that it would be more prudent on the ground of utility to pardon a delinquent whose punishment would cause widespread discontent, or if he is protected by a foreign state whose goodwill it is necessary to gain, or if he is able to do the nation some extraordinary service 1). A punishment is mistaken or misapplied when it does not bear directly on the individual who is to be subjected to its influence. Such penalties are confiscation, "a remnant of barbarity which still exists throughout almost all Europe"; corruption of blood, "a cruel fiction of the lawyers to disguise the injustice of confiscation"; loss of privileges, whereby an entire corporation is penalised for the misconduct of some of its members; incapacity of illegitimate children, themselves innocent, to fulfil certain trusts and many public rights; infamy attached to the relatives of certain offenders (an injustice, however, that is passing away)."

Bentham mentions certain cases, stated above, in which the pardoning power may be exercised. Similarly, where there is a large multitude of delinquents as after sedition, conspiracy, or public disorder-it may be well to grant them a pardon; for punishment would here do more harm than good. And, of course, a free pardon and reinstatement will be indispensable in the case of a convicted person as soon as new evidence of his innocence is discovered. Apart from these cases, which are based on utility and necessity, the pardoning power is out of place. It makes punishment uncertain, and therefore imparts to crime a certain element of impunity. "Clemency is the first virtue of a sovereign, if the crime be only an attack upon his self-love. But when the offence is one against society, a pardon is not an act of clemency; it is a mere piece of partiality.” 5 "Pardons without motive impeach either the laws or the government: the laws, of cruelty 1 Treatise, Part III, chap. i; Works, Part II, bk. i, chap. iv; vol. i, p. 530. Treatise, chap. iv. • Works, vol. i, p. 530. Cf. Beccaria's views, supra, on the pardoning power. $ Treatise, Part III, chap. x.

to individuals; or the government, of cruelty to the public Reason, justice, and humanity must be wanting somewhere; for reason is never in contradiction with itself; justice cannot destroy with one hand what it has done with the other; humanity cannot require that punishment should be established for the protection of innocence, and that pardons should be granted for the encouragement of crime. . . . To sum up. If the laws are too severe, the power of pardoning is a necessary corrective; but that corrective is itself an evil. Make good laws, and there will be no need of a magic wand which has the power to annul them. If the punishment is necessary, it ought not to be remitted; if it is not necessary, the convict should not be sentenced to undergo it." 1

With regard to the measure of punishment, or the proportion between penalties and offences, Bentham quotes Horace about making the punishment fit the crime, and observes that both Montesquieu and Beccaria insisted on the necessity of securing a due proportion, but that they merely recommended it instead of explaining in what that proportion consists. Therefore he lays down some guiding rules: (1) The evils of the punishment must be made to exceed the advantage of the offence. The repressive motive should be stronger than the seductive motive. An inefficacious punishment is a greater evil than an excess of rigour, for it is an evil wholly thrown away. (2) The less certain a punishment is the severer it should be; the greater the certainty the less the severity. It should follow the offence as closely as possible. (3) When two offences are in conjunction, the greater should receive heavier punishment, so that the offender may have a motive to stop at the lesser. (Bentham thinks it a less heinous crime to steal ten crowns than twenty, when the thief could as easily have stolen twenty.) Equal punishment for unequal offences often conduces to the commission of the greater offence. (4) The greater the offence the more reason is there to hazard a severe punishment in the hope of preventing it. It is to be remembered that the infliction of a penalty is a certain cost to procure an uncertain gain. To apply a heavy punishment for a slight offence is to pay very dearly for the chance of avoiding a small evil. (5) The same punishment for the same offence should not be inflicted on all offenders. Regard should be paid to their different sensibility. The same

1 Treatise, Part III, chap. x.

nominal punishment is not the same real punishment. "Age, sex, rank, fortune, and many other circumstances ought to modify the punishments inflicted for the same offence. If the offence is a corporal injury, the same pecuniary punishment would be a trifle to the rich, and oppressive to the poor. The same punishment that would brand with ignominy a man of a certain rank would not produce even the slightest stain in case the offender belonged to an inferior class. The same imprisonment would be ruin to a man of business, death to an infirm old man, and eternal disgrace to a woman, while it would be next to nothing to an individual placed under other circumstances." "Let it be observed, however, that the proportion between punishments and offences ought not to be so mathematically followed up as to render the laws subtle, complicated, and obscure. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire the people with a sentiment of aversion for those vices which prepare the way for crimes." 1

In order that a punishment may fulfil these rules of proportion, it should possess the following qualities: 2 (1) "Variability," i.e. susceptibility of adjustment to the gravity of particular offences. (2) "Equability," to make its effect the same on all guilty of the same offence, by adapting it to their particular degree of sensibility; therefore age, sex, condition, fortune, habits, and other attendant circumstances must be considered. (3) "Commensurability," i.e. where offences are connected, the greater is to receive a greater punishment. Penalties may be made commensurable by increasing the severity of a certain punishment, and by adding to a certain punishment one of a different kind. (This third quality is only an application of the first.) (4) "Characteristicalness," or analogy to the offence by which the punishment will be more easily remembered, and will more strongly impress the imagination. In this respect the lex talionis is admirable, but in most cases its application would be too unequable and too costly. "There are other means of analogy. Search out, for example, the motives of offences, and generally you will recognise the dominant passion of the offender, and you may punish him, according to the proverbial saying, with the instrument of his sin. Offences of cupidity will best be punished by pecuniary

fines, when the wealth of the offender admits it; offences of insolence, by humiliation; offences of idleness, by compulsory labour." (5) "Exemplarity," so that the punishment will, in the eyes of the public, be apparent as a punishment. "The great art consists in augmenting the apparent punishment without augmenting the real punishment. This may be accomplished, either in the selection of the punishments themselves, or by accompanying their execution with striking solemnities. . The reality of punishment is only necessary to maintain the appearance of it. . . . Take care, however, lest punishment become unpopular and odious through a false appearance of rigour." (6) "Frugality," requiring penalties to have that degree of severity essential to fulfil their object. (7) “Remissibility." "As long as testimony is susceptible of imperfection, as long as appearances may be deceitful, as long as men have no certain criterion whereby to distinguish truth from falsehood, one of the most important precautions which mutual security requires is, not to admit of punishments absolutely irreparable, except upon the clearest evidence of their necessity." (All these qualities need not necessarily co-exist in any particular penalty; they are only the circumstances to be kept in view when a punishment is chosen, for which purpose compromises will have to be made in order to secure the highest advantage. To these qualities the following may be added, which are of more or less limited utility, and are to be aimed at when it is possible to procure them without detracting from the fundamental attribute of exemplarity.) (8) "Subserviency to reformation." It is a great merit in a penalty to contribute to the criminal's reformation, not only by inspiring him with the fear of incurring punishment again, but by effecting a change in his character and habits. For this purpose we should study the motive that produced the offence, and impose a punishment which tends to weaken that motive. Thus, the different classes of prisoners in a gaol should be separated, in order that different means of treatment may be adapted to their several natures and conditions. (9) "Efficacy with respect to disablement." Mutilations and perpetual imprisonment take away the power of doing injury again; but exclusive consideration of this quality has led to excessive rigour, and to the frequent imposition and extension of the capital penalty. (10) "Subserviency to compensation," so that an indemnity may be also given to the injured party.