An Introduction to the Principles of Morals and Legislation
1. Note by the author, July, 1822.
For a tabular simultaneous view of the whole list of motives, in conjunction with the correspondent pleasures and pains, interests and desires, see, by the same author, Table of the Springs of Action, &c, with Explanatory Notes and Observations. London: 1817, Hunter, St. Paul's Church Yard, 8vo. pp. 32.
The word inducement has of late presented itself, as being in its signification more comprehensive than the word motive, and on some occasions more apposite.
2. When the effect or tendency of a motive is to determine a man to forbear to act, it may seem improper to make use of the term motive: since motive, properly speaking, means that which disposes an object to move. We must however use that improper term, or a term which, though proper enough, is scarce in use, the word determinative. By way of justification, or at least apology, for the popular usage in this behalf, it may be observed that even forbearance to act, or the negation of motion (that is, of bodily motion) supposes an act done when such forbearance is voluntary. It supposes, to wit, an act of the will, which is as much a positive act, as much motion, as any other act of the thinking substance.
3. Whether it be the expectation of being burnt, or the pain that accompanies that expectation, that is the immediate internal motive spoken of may be difficult to determine. It may even be questioned, perhaps,whether they are distinct entities. Both questions, however, seem to be mere questions of words, and the solution of them altogether immaterial. Even the other kinds of motives, though for some purposes they demand a separate consideration, are, however, so intimately allied, that it will often be scarce practicable, and not always material, to avoid confounding them, as they have always hitherto been confounded.
4. Under the term esse must be included as well past existence, with reference to a given period as present. They are equally real, in comparison with what is as yet but future. Language is materially deficient, in not enabling us to distinguish with precision between existence as opposed to unreality and present existence as opposed to past. The word existence in English, and esse, adopted by lawyers from the Latin, have the inconvenience of appearing to confine the existence in question to some single period considered as being present.
5. Let a man's motive be ill-will; call it even malice, envy, cruelty, it is still a kind of pleasure that is his motive: the pleasure he takes at the thought of the pain which he sees, or expects to see, his adversary undergo. Now even this wretched pleasure, taken by itself, is good: it may be faint; it may be short: it must at any rate be impure: yet while it lasts, and before any bad consequences arrive, it is as good as any other that is not more intense. See ch. iv. [Value].
6. For the reason, see chap. xi. [Dispositions], par. xvii. note.
7. To this imperfection of language, and nothing more, are to be attributed in great measure, the violent clamours that have from time to time been raised against those ingenious moralists, who, travelling out of the beaten tract of speculation, have found more or less difficulty in disentangling themselves from the shackles of ordinary language: such as Rochefoucault, Mandeville and Helvetius. To the unsoundness of their opinions, and with still greater injustice, to the corruption of their hearts, was often imputed, what was most commonly owing either to a want of skill, in matters of language on the part of the author, or a want of discernment, possibly now and then in some instances a want of probity, on the part of the commentator.
8. Happily, language is not always so intractable, but that by making use of two words instead of one, a man may avoid the inconvenience of fabricating words that are absolutely new. Thus instead of the word lust, by putting together two words in common use, he may frame the neutral expression, sexual desire: instead of the word avarice, by putting together two other words also in common use, he may frame the neutral expression pecuniary interest. This, accordingly, is the course which I have taken. In these instances, indeed, even the combination is not novel: the only novelty there is consists in the steady adherence to the one neutral expression, rejecting altogether the terms, of which the import is infected by adventitious and unsuitable ideas.
In the catalogue of motives, corresponding to the several sorts of pains and pleasures, I have inserted such as have occurred to me. I cannot pretend to warrant it complete. To make sure of rendering it so, the only way would be, to turn over the dictionary from beginning to end: an operation which, in a view to perfection, would be necessary for more purposes than this. See B. I. tit. [Defamation], and Append. tit. [Composition].
9. Hunger and thirst, considered in the light of motives, import not so much the desire of a particular kind of pleasure, as the desire of removing a positive kind of pain. They do not extend to the desire of that kind of pleasure which depends on the choice of foods and liquors.
10. It will not be worth while, in every case, to give an instance in which the action may be indifferent: if good as well as bad actions may result from the same motive, it is easy to conceive, that also may be indifferent.
11. Love indeed includes sometimes this idea: but then it can never answer the purpose of exhibiting it separately: since there are three motives, at least, that may all of them be included in it, besides this: the love of beauty corresponding to the pleasures of the eye, and the motives corresponding to those of amity and benevolence. We speak of the love of children, of the love of parents, of the love of God. These pious uses protect the appellation, and preserve it from the ignominy poured forth upon its profane associates. Even sensual love would not answer the purpose; since that would include the love of beauty.
12. See Chap. vi. [Pleasures and Pains], par. xxiv. note.
13. A man's bearing an affront patiently, that is, without taking this method of doing what is called wiping it off, is thought to import one or other of two things: either that he does not possess that sensibility to the pleasures and pains of the moral sanction, which, in order to render himself a respectable member of society, a man ought to possess: or, that he does not possess courage enough to stake his life for the chance of gratifying that resentment which a proper sense of the value of those pleasures and those pains it is thought would not fail to inspire. True it is, that there are divers other motives, by any of which the same conduct might equally be produced: the motives corresponding to the religious sanction, and the motives that come under the head of benevolence. Piety towards God, the practice in question being generally looked upon as repugnant to the dictates of the religious sanction: sympathy for your antagonist himself, whose life would be put to hazard at the same time with your own; sympathy for his connexions; the persons who are dependent on him in the way of support, or connected with him in the way of sympathy: sympathy for your own connexions: and even sympathy for the public, in cases where the man is such that the public appears to have a material interest in his life. But in comparison with the love of life, the influence of the religious sanction is known to be in general but weak: especially among people of those classes who are here in question: a sure proof of which is the prevalence of this very custom. Where it is so strong as to preponderate, it is so rare, that, perhaps, it gives a man a place in the calendar: and, at any rate, exalts him to the rank of martyr. Moreover, the instances in which either private benevolence or public spirit predominate over the love of life, will also naturally be but rare: and, owing to the general propensity to detraction, it will also be much rarer for them to be thought to do so. Now, when three or more motives, any one of them capable of producing a given mode of conduct, apply at once, that which appears to be the most powerful, is that which will of course be deemed to have actually done the most: and, as the bulk of mankind, on this as on other occasions, are disposed to decide peremptorily upon superficial estimates, it will generally be looked upon as having done the whole.
The consequence is, that when a man of a certain rank forbears to take this chance of revenging an affront, his conduct will, by most people, be imputed to the love of life: which, when it predominates over the love of reputation, is, by a not unsalutary association of ideas, stigmatized with the reproachful name of cowardice.
14. I am aware, or at least I hope, that people in general, when they see the matter thus stated, will be ready to acknowledge, that the motive in these cases, whatever be the tendency of the acts which it produces, is not a bad one: but this will not render it the less true, that hitherto, in popular discourse it has been common for men to speak of acts, which they could not but acknowledge to have originated from this source, as proceeding from a bad motive. The same observation will apply to many of the other cases.
15. Among the Greeks, perhaps the motive, and the conduct it gave birth to, would, in such a case, have been rather approved than disapproved of. It seems to have been deemed an act of heroism on the part of Hercules to have delivered his friend Theseus from hell: though divine justice which held him there, should naturally have been regarded as being at least upon a footing with human justice. But to divine justice, even when acknowledged under that character, the respect paid at that time of day does not seem to have been very profound, or well-settled: at present, the respect paid to it is profound and settled enough, though the name of it is but too often applied to dictates which could have had no other origin than the worst sort of human caprice.
16. Here, as elsewhere, it may be observed, that the same words which are mentioned as names of motives, are also many of them names of passions, appetites, and affections: fictitious entities, which are framed only by considering pleasures or pains in some particular point of view. Some of them are also names of moral qualities. This branch of nomenclature is remarkably entangled: to unravel it completely would take up a whole volume; not a syllable of which would belong properly to the present design.
17. See ch. v. [Pleasures and Pains], par. xxiv, xxv.
18. It may seem odd at first sight to speak of the love of ease as giving to action: but exertion is as natural an effect of the love of ease as inaction is, when a smaller degree of exertion promises to exempt a man from a greater.
19. 'Religion,' says the pious Addison, somewhere in the Spectator, 'is the highest species of self-love.'
20. When a man is supposed to be prompted by any motive to engage, or not to engage, in such or such an action, it may be of use, for the convenience of discourse, to speak of such motive as giving birth to an imaginary kind of law or dictate, injoining him to engage, or not to engage, in it.*
21. See ch. iv. [Value], and ch. vi. [Sensibility], par. xxi.
22. See ch. ix. [Consciousness].
23. Or valuable. See ch. iv. [Value].
24. See B. II. tit. [Evidence].
25. See ch. vi. [Sensibility], par. xii, xiii.
26. Strictly speaking, habit, being but a fictitious entity, and not really any thing distinct from the acts or perceptions by which it is said to be formed, cannot be the cause of any thing. The enigma, however, may be satisfactorily solved upon the principle of association, of the nature and force of which a very satisfactory recount may be seen in Dr. Priestley's edition of Hartley on Man.
27. Ch. ii. [Principles Adverse], par. xviii.
28. Sometimes, in order the better to conceal the cheat (from their own eyes doubtless as well as from others) they set up a phantom of their own, which they call Justice: whose dictates are to modify (which being explained, means to oppose) the dictates of benevolence. But justice, in the only sense in which it has a meaning, is an imaginary personage, feigned for the convenience of discourse, whose dictates are the dictates of utility, applied to certain particular cases. Justice, then, is nothing more than an imaginary instrument, employed to forward on certain occasions, and by certain means, the purposes of benevolence. The dictates of justice are nothing more than a part of the dictates of benevolence, which, on certain occasions, are applied to certain subjects; to wit, to certain actions.
29. See ch. ii. [Principles Adverse, &c.]
30. See ch. vi. [Sensibility], par. xxi.
32. See ch. vii. [Actions], par. viii.
33. The idea of the case here supposed is taken from an anecdote in real history, but varies from it in several particulars.
34. See B. I. tit. [Rebellion].
35. See B. I. tit. [Simp. corp. injuries]. Ib. tit. [Homicide].
36. See ch. xi. [Dispositions].
37. See Append. tit. [Preventive Institutions].
Chapter XI.
38. It might also be termed virtuous, or vicious. The only objection to the use of those terms on the present occasion is, the great quantity of good and bad repute that respectively stand annexed to them. The inconvenience of this, their being apt to annex an ill-proportioned measure of disrepute to dispositions which are ill-constituted only with respect to the party himself: involving them in such a degree of ignominy as should be appropriated to such dispositions only as are mischievous with regard to others. To exalt weaknesses to a level with crimes, is a way to diminish the abhorrence which ought to be reserved for crimes. To exalt small evils to a level with great ones, is the way to diminish the share of attention which ought to be paid to great ones.
41. To suppose a man to be of a good disposition, and at the same time likely, in virtue of that very disposition, to engage in an habitual train of mischievous actions, is a contradiction in terms: nor could such a proposition ever be advanced, but from the giving, to the thing which the word disposition is put for a reality which does not belong to it. If then, for example, a man of religious disposition should, in virtue of that very disposition, be in the habit of doing mischief, for instance, by persecuting his neighbours, the case must be, either that his disposition, though good in certain respects, is not good upon the whole: or that a religious disposition is not in general a good one.
42. See ch. xii. [Consequences], and Code, B. I. tit. [Theft].
44. The bulk of mankind, ever ready to depreciate the character of their neighbours, in order, indirectly, to exalt their own, will take occasion to refer a motive to the class of bad ones as often as they can find one still better, to which the act might have owed its birth. Conscious that his own motives are not of the best class, or persuaded that if they be, they will not be referred to that class by others; afraid of being taken for a dupe, and anxious to show the reach of his penetration; each man takes care, in the first place, to impute the conduct of every other man to the least laudable of the motives that can account for it: in the next place when he has gone as far that way as he can, and cannot drive down the individual motive to any lower class, he changes his battery, and attacks the very class itself. To the love of reputation he will accordingly give a bad name upon every occasion, calling it ostentation, vanity, or vain-glory.
Partly to the same spirit of detraction the natural consequence of the sensibility of men to the force of the moral sanction, partly to the influence of the principle of asceticism, may, perhaps, be imputed the great abundance of bad names of motives, in comparison of such as are good or neutral: and, in particular the total want of neutral names for the motives of sexual desire, physical desire in general, and pecuniary interest. The superior abundance, even of good names, in comparison of neutral ones, would, if examined, be found rather to confirm than disprove the above remark. The language of a people on these points may, perhaps, serve in some measure as a key to their moral sentiments. But such speculative disquisitions are foreign to the purpose of the present work.
45. See the case of Duels discussed in B. I. tit. [Homicide].
46. See B. I. tit. [Offences against Religion].
47. Love of the pleasures of the palate.
49. Supra, par. xxvii, xxviii.
50. See B. I. tit. [Confinement].
Chapter XII.
51. See ch. vi. [Sensibility].
52. Viz. a pain of privation. See ch. v. [Pleasures and Pains], xvii.
53. Viz. a pain of apprehension, grounded on the prospect of organical pain, or whatever other mischiefs might have ensued from the ill treatment. Ib. xxx.
54. See ch. xi. [Dispositions], xl.
55. To wit, in virtue of the pain it may give a man to be a witness to, or otherwise conscious of, the sufferings of a fellow-creature: especially when he is himself the cause of them: in a word, the pain of sympathy. See ch. v. [Pleasures and Pains], xxvi.
56. See Hom. Odyss. L. xix. l. 395; ib. L. iii. l. 71. Plato de Rep. L. i. p. 576, edit. Ficin. Thucyd. L. i.—and see B. I. tit. [Offences against external security].
57. To the former of these branches is opposed so much of the force of any punishment, as is said to operate in the way of reformation: to the latter, so much as is said to operate in the way of example. See ch. xiii. [Cases unmeet], par. ii. note.
58. There may be other points of view, according to which mischief might be divided, besides these: but this does not prevent the division here given from being an exhaustive one. A line may be divided in any one of an infinity of ways, and yet without leaving in any one of those cases any remainder. See ch. xvi. [Division] i. note.
59. Ch. v. [Pleasures and Pains] i.
60. See ch. xvi. [Division] iv. note.
62. See ch. vii. [Actions] viii.
63. The investigation might, by a process rendered obvious by analogy, be extended to the consequences of an act of a beneficial nature. In both instances a third order of consequences may be reckoned to have taken place, when the influence of the act, through the medium of the passive faculty of the patient, has come to affect his active faculty. In this way 1. Evil may flow out of evil:—instance; the exertions of industry put a stop to by the extinction of inducement, resulting from a continued chain of acts of robbery or extortion. 2. Good out of evil:—instance; habits of depredation put a stop to by a steady course of punishment. 3. Evil out of good:—instance; habits of industry put a stop to by an excessive course of gratuitous bounty. 4. Good out of good:—instance; a constant and increasing course of industry, excited and kept up by the rewards afforded by a regular and increasing market for the fruits of it.
64. An act of homicide, for instance, is not rendered innocent, much less beneficial, merely by its proceeding from a principle of religion, of honour (that is, of love of reputation) or even of benevolence. When Ravaillac assassinated Henry IV. it was from a principle of religion. But this did not so much as abate from the mischief of the act. It even rendered the act still more mischievous, for a reason that we shall see presently, than if it had originated from a principle of revenge. When the conspirators against the late king of Portugal attempted to assassinate him, it is said to have been from principle of honour. But this, whether it abated or no, will certainly not be thought to have outweighed, the mischief of the act. Had a son of Ravaillac's, as in the case before supposed,* merely on the score of filial affection, and not in consequence of any participation in his crime, put him to death in order to rescue him from the severer hands of justice, the motive, although it should not be thought to afford any proof of a mischievous disposition, and should, even in case of punishment have made such rescuer an object of pity, would hardly have made the act of rescue a beneficial one.
65. The prosecution of offenses, for instance, proceeds most commonly from one or other, or both together, of two motives, the one of which is of the self-regarding, the other of the dissocial kind: viz. pecuniary interest, and ill-will: from pecuniary interest, for instance, whenever the obtaining pecuniary amends for damage suffered is one end of the prosecution. It is common enough indeed to hear men speak of prosecutions undertaken from public spirit; which is a branch, as we have seen,* of the principle of benevolence. Far be it from me to deny but that such a principle may very frequently be an ingredient in the sum of motives, by which men are engaged in a proceeding of this nature. But whenever such a proceeding is engaged in from the sole influence of public spirit, uncombined with the least tincture of self-interest, or ill-will, it must be acknowledged to be a proceeding of the heroic kind. Now acts of heroism are, in the very essence of them, but rare: for if they were common, they would not be acts of heroism. But prosecutions for crimes are very frequent, and yet, unless in very particular circumstances indeed, they are never otherwise than beneficial.
67. It is for this reason that a threat, or other personal outrage, when committed on a stranger, in pursuance of a scheme of robbery, is productive of more mischief in society, and accordingly is, perhaps, every where more severely punished, than an outrage of the same kind offered to an acquaintance, in prosecution of a scheme of vengeance. No man is always in a rage. But, at all times, every man, more or less, loves money. Accordingly, although a man by his quarrelsomeness should for once have been engaged in a bad action, he may nevertheless remain a long while, or even his whole life-time, without engaging in another bad action of the same kind: for he may very well remain his whole life-time without engaging in so violent a quarrel: nor at any rate will he quarrel with more than one, or a few people at a time. But if a man, by his love of money, has once been engaged in a bad action, such as a scheme of robbery, he may at any time, by the influence of the same motive, be engaged in acts of the same degree of enormity. For take men throughout, if a man loves money to a certain degree to-day, it is probable that he will love it, at least in equal degree, to-morrow. And if a man is disposed to acquire it in that way, he will find inducement to rob, wheresoever and whensoever there are people to be robbed.
68. If a man happen to take it into his head to assassinate with his own hands, or with the sword of justice, those whom he calls heretics, that is, people who think, or perhaps only speak, differently upon a subject which neither party understands, he will be as much inclined to do this at one time as at another. Fanaticism never sleeps: it is never glutted: it is never stopped by philanthropy; for it makes a merit of trampling on philanthropy: it is never stopped by conscience; for it has pressed conscience into its service. Avarice, lust, and vengeance, have piety, benevolence, honour; fanaticism has nothing to oppose it.
Chapter XIII.
69. What follows, relative to the subject of punishment, ought regularly to be preceded by a distinct chapter on the ends of punishment. But having little to say on that particular branch of the subject, which has not been said before, it seemed better, in a work which will at any rate be but too voluminous, to omit this title, reserving it for another, hereafter to be published, intituled The Theory of Punishment.* To the same work I must refer the analysis of the several possible modes of punishment, a particular and minute examination of the nature of each, and of its advantages and disadvantages, and various other disquisitions, which did not seem absolutely necessary to be inserted here. A very few words, however, concerning the ends of punishment, can scarcely be dispensed with.
The immediate principal end of punishment is to control action. This action is either that of the offender, or of others: that of the offender it controls by its influence, either on his will, in which case it is said to operate in the way of reformation; or on his physical power, in which case it is said to operate by disablement: that of others it can influence otherwise than by its influence over their wills, in which case it is said to operate in the way of example. A kind of collateral end, which it has a natural tendency to answer, is that of affording a pleasure or satisfaction to the party injured, where there is one, and, in general, to parties whose ill-will whether on a self-regarding account, or on the account of sympathy or antipathy, has been excited by the offense. This purpose, as far as it can be answered gratis, is a beneficial one. But no punishment ought to be allotted merely to this purpose, because (setting aside its effects in the way of control) no such pleasure is ever produced by punishment as can be equivalent to the pain. The punishment, however, which is allotted to the other purpose, ought, as far as it can be done without expense, to be accommodated to this. Satisfaction thus administered to a party injured, in the shape of a dissocial pleasure,** may be styled a vindictive satisfaction or compensation: as a compensation, administered in the shape of self-regarding profit, or stock of pleasure, may be styled a lucrative one. See B. I. tit. vi. [Compensation]. Example is the most important end of all, in proportion as the number of the persons under temptation to offend is to one.
* This is the work which, from the Author's papers, has since been published by Mr. Dumont in French, in company with The Theory of Reward added to it, for the purpose of mutual illustration. It is in contemplation to publish them both in English, from the Author's manuscripts, with the benefit of any amendments that have been made by Mr. Dumont. [Note to the Edition of 1823.]
70. See B. I. tit. [Justifications].
71. See supra, ch. iv. [Value].
72. See Book I. tit. [Justifications].
73. This, for example, seems to have been one ground, at least, of the favour shown by perhaps all systems of laws, to such offenders as stand upon a footing of responsibility: shown, not directly indeed to the persons themselves; but to such offenses as none but responsible persons are likely to have the opportunity of engaging in. In particular, this seems to be the reason why embezzlement, in certain cases, has not commonly been punished upon the footing of theft: nor mercantile frauds upon that of common sharping.*
* See tit. [Simple merc. Defraudment].
74. See B. II. Appendix, tit. iii. [Promulgation].
75. Notwithstanding what is here said, the cases of infancy and intoxication (as we shall see hereafter) cannot be looked upon in practice as affording sufficient grounds for absolute impunity. But this exception in point of practice is no objection to the propriety of the rule in point of theory. The ground of the exception is neither more nor less than the difficulty there is of ascertaining the matter of fact: viz. whether at the requisite point of time the party was actually in the state in question; that is, whether a given case comes really under the rule. Suppose the matter of fact capable of being perfectly ascertained, without danger or mistake. the impropriety of punishment would be as indubitable in these cases as in any other.*
The reason that is commonly assigned for the establishing an exemption from punishment in favour of infants, insane persons, and persons under intoxication, is either false in fact, or confusedly expressed. The phrase is that the will of these persons concurs not with the act; that they have no vicious will; or, that they have not the free use of their will. But suppose all this to be true? What is it to the purpose? Nothing: except in as far as it implies the reason given in the text.
* See B. I. tit. iv. [Exemptions]. and tit. vii. [Extenuations].
76. See ch. viii. [Intentionality].
77. See ch. ix. [Consciousness].
78. The influences of the moral and religious sanctions, or, in other words, of the motives of love of reputation and religion, are other causes, the force of which may, upon particular occasions, come to be greater than that of any punishment which the legislator is able, or at least which he will think proper, to apply. These, therefore, it will be proper for him to have his eye upon. But the force of these influences is variable and different in different times and places: the force of the foregoing influences is constant and the same, at all times and every where. These, therefore, it can never be proper to look upon as safe grounds for establishing absolute impunity: owing (as in the above-mentioned cases of infancy and intoxication) to the impracticability of ascertaining the matter of fact.
79. See ch. v. [Pleasures and Pains].
80. See ch. xii. [Consequences].
Chapter XIV.
81. By offences I mean, at present, acts which appear to him to have a tendency to produce mischief.
82. The same rules (it is to be observed) may be applied, with little variation, to rewards as well as punishment: in short, to motives in general, which, according as they are of the pleasurable or painful kind, are of the nature of reward or punishment: and, according as the act they are applied to produce is of the positive or negative kind, are styled impelling or restraining. See ch. x. [Motives] xliii.
83. By the profit of an offense, is to be understood, not merely the pecuniary profit, but the pleasure or advantage, of whatever kind it be, which as a man reaps, or expects to reap, from the gratification of the desire which prompted him to engage in the offense.*
It is the profit (that is, the expectation of the profit) of the offence that constitutes the impelling motive, or, where there are several, the sum of the impelling motives, by which a man is prompted to engage in the offense. It is the punishment, that is, the expectation of the punishment, that constitutes the restraining motive, which, either by itself, or in conjunction with others, is to act upon him in a contrary direction, so as to induce him to abstain from engaging in the offense. Accidental circumstances apart, the strength of the temptation is as the force of the seducing, that is, of the impelling motive or motives. To say then, as authors of great merit and great name have said, that the punishment ought not to increase with the strength of the temptation, is as much as to say in mechanics, that the moving force or momentum of the power need not increase in proportion to the momentum of the burthen.
84. Beccaria, dei diletti, § 6. id. trad. par. Morellet, § 23.
85. See ch. xi. [Dispositions] xxix.
86. It is a well-known adage, though it is to be hoped not a true one, that every man has his price. It is commonly meant of a man's virtue. This saying, though in a very different sense, was strictly verified by some of the Anglo-Saxon laws: by which a fixed price was set, not upon a man's virtue indeed, but upon his life: that of the sovereign himself among the rest. For 200 shillings you might have killed a peasant: for six times as much, a nobleman: for six-and-thirty times as much you might have killed the king.* A king in those days was worth exactly 7,200 shillings. If then the heir to the throne, for example, grew weary of waiting for it, he had a secure and legal way of gratifying his impatience: he had but to kill the king with one hand, and pay himself with the other, and all was right. An earl Godwin, or a duke Streon, could have bought the lives of a whole dynasty. It is plain, that if ever a king in those days died in his bed, he must have had something else, besides this law, to thank for it. This being the production of a remote and barbarous age, the absurdity of it is presently recognised: but, upon examination, it would be found, that the freshest laws of the most civilised nations are continually falling into the same error.** This, in short, is the ease wheresoever the punishment is fixed while the profit of delinquency is indefinite: or, to speak more precisely, where the punishment is limited to such a mark, that the profit of delinquency may reach beyond it.
* Wilkins Leg. Anglo-Sax. p, 71, 72. See Hume, Vol. 1. App. 1. p. 219.
** See in particular the English Statue laws throughout, Bonaparte's Penal Code, and the recently enacted or not enacted Spanish Penal Code.—Note by the Author, July 1822.
87. See ch. xiii. [Cases unmeet], § 1.
88. See ch. xi. [Dispositions], xlii.
89. For example, if it can ever be worth while to be at the expense of so horrible a punishment as that of burning alive, it will be more so in the view of preventing such a crime as that of murder or incendiarism, than in the view of preventing the uttering of a piece of bad money. See B. I. tit. [Defraudment touching the Coin] and [Incendiarism].
90. Espr. des Loix, L. vi. c. 16.
91. If any one have any doubt of this, let him conceive the offence to be divided into as many separate offenses as there are distinguishable parcels of mischief that result from it. Let it consist, for example, in a man's giving you ten blows, or stealing from you ten shillings. If then, for giving you ten blows, he is punished no more than for giving you five, the giving you five of these ten blows is an offense for which there is no punishment at all: which being understood, as often as a man gives you five blows, he will be sure to give you five more, since he may have the pleasure of giving you these five for nothing. In like manner, if for stealing from you ten shillings, he is punished no more than for stealing five, the stealing of the remaining five of those ten shillings is an offense for which there is no punishment at all. This rule is violated in almost every page of every body of laws I have ever seen.
The profit, it is to be observed, though frequently, is not constantly, proportioned to the mischief: for example, where a thief, along with the things he covets, steals others which are of no use to him. This may happen through wantonness, indolence, precipitation, &c. &c.
92. See ch. vi. [Sensibility].
94. It is for this reason, for example, that simple compensation is never looked upon as sufficient punishment for theft or robbery.
95. A punishment may be said to be calculated to answer the purpose of a moral lesson, when, by reason of the ignominy it stamps upon the offense, it is calculated to inspire the public with sentiments of aversion towards those pernicious habits and dispositions with which the offense appears to be connected; and thereby to inculcate the opposite beneficial habits and dispositions.
It is this, for example, if any thing, that must justify the application of so severe a punishment as the infamy of a 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].
It is partly on this principle, I suppose, that military legislators have justified to themselves the inflicting death on the soldier who lifts up his hand against his superior officer.
96. See ch. xiii. [Cases unmeet], § 4.
97. See B. II. tit. [Purposes], Append. tit. [Composition].
98. Notwithstanding this rule, my fear is, that in the ensuing model, I may be thought to have carried my endeavours 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.
99. See B. I. tit. [Punishments].
100. See Append. tit. [Promulgation].
101. There are few madmen but what are observed to be afraid of the strait waistcoat.
102. See ch. xii. [Consequences], xxxiii.
Chapter XV.
103. By the English law, there are several offenses 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.
104. See View of the Hard-Labour Bill, Lond. 1778, p. 100.
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 recount of the channel by which it was first communicated, let him tell me where I can find an idea more ingenious or original.
105. 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.
106. See ch. vii. [Actions], iii.
107. 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.
108. See ch. xiii. [Cases unmeet] § 1, 2. note.
110. See B. I. tit. [Punishments].
111. See B. II. tit. [Execution].
112. Ch. xiii. [Cases unmeet], par. iii.
114. See ch. xiii. [Cases unmeet], par. ii. note.
116. See B. I. tit. [Offences against Justice].
117. See B. I. tit. [Punishments].
118. The property of characteristicalness, therefore, is useful in a mode of punishment in three different ways: 1. It renders a mode of punishment, before infliction, more easy to be borne in mind: 2. It enables it, especially after infliction, 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.
119. See ch. xiii. [Cases unmeet], § v.
120. See ch. xiii. [Cases unmeet], § iv. par. iv.
121. See View of the Hard Labour Bill, p. 109.