PUNISHMENT. 



There is another excellent method of ftrengthening this im- 

 portant coiineftion between the idea^ of crime and punifti- 

 ment ; that is, to make the puniHiraent as analogous as 

 poffible to the nature of the crime ; in order that the punifh- 

 ment may lead the mind to confider the crime in a different 

 point of view, from that in which il was placed by the 

 flattering idea of promifed advantages. This ingenious 

 writer clofes his effay with the following general theorem, 

 as the refult of his previous reafoning. " That a puni(h- 

 ment may not be an aft of violence, of one or of many 

 againft a private member of fociety, it {hould be public, im- 

 mediate, and ueceflary ; the lealt poflible in the cafe given ; 

 proportioned to the crime, and determined by tlie laws." 

 Montefq. Sp. of Laws. Beccaria's Effay on Crimes and 

 Punifhments. Blackft. Com. vol. iv. 



A valuable work, comprifmg the fubjeft of this article, 

 was prefented to the public in the year i8l I by M. Diimont 

 of Geneva. It was formed of detached materials, furnifhed 

 by the papers of Mr. Jeremiah Bentham, and the whole 

 is executed with fuch judgment in the arrangement of the 

 matter, and fo much livelinefs and elegance as to the Ityle 

 of the conipofition, that M. Dumont appears more like an 

 original author than an editor. This work would have 

 afforded us many inffruftive and intereiting extrafts, if our 

 limits had allow-ed our making that ufe of it, which it de- 

 ferves. This, liowever, is the lefs neceffary, as the reader 

 may have accefs to the original treatife, toc. _" Theorie 

 des' Peines ct des Recompenfes ; par M. Jeremie' Bentham, 

 Jurifconfulte Anglois ; redigce m Frangois d'apres les 

 Manufcrits, par M. Et. Dumont de G6neve," 2 vol. 8vo. 

 a Londres, 1811 : or to the ample analyfis of it in the 

 Edinburgh Review, N° 43. A brief account of its con- 

 tents may, however, be gratifying to our readers. This work 

 confifts of two great parts or branches ; the theory of penal 

 legiflation, and the theory of remunerative legidation. The 

 iiril contains in a fyftematical form all the principles that 

 ferve to regulate the choice of different modes of punifti- 

 ment and the apportionment of punifliment^ to crimes. In 

 the fecond are exhibited the principles upon which the 

 lawgiver ought to proceed, when he holds out inducements 

 either alone or attended with correfponding penalties, to 

 influence the conduft of his fubjefts. The firfl: book ex-_ 

 plains the general principles of the fyltcm, and opens with 

 definitions and clafliflcations. 



Punifhment, in its moft general fenfe, is the infliftion of 

 fome evil upon an individual, with an intention that he 

 Ihould fuffer this evil, and with a reference to fome aft 

 done or omitted. Punifliment, in its legal fcnfe, is the in- 

 fliftion of fome evil, according to judicial forms, upon an 

 'ndividual convifted of fome a6t forbidden by law, and 

 vith the intention of preventing the recurrence of fuch afts. 

 Punifhments, as v.'ell as crimes, are divifible into four claffes, 

 as they affeft the per/on, the property, the rrputalidn, or the 

 condition of thofe upon whom they are inflifted. Thofe which 

 affeft the perfon, or corporal punifhments, are fubdivided 

 into various fpecies ; they may be limply or complexly 

 affliftivc, or reilriftive, or aftive {e. g. compulfory labour) 

 or capital. The other three claffes are all privative, af- 

 fefting the dchnqucnt with lofs or degradation. Hence 

 arifes another general claffification of punifliments, by divid- 

 ing them into corpor.il and privative. 



From this definition it appears, that the objeft of all 

 punifhment is the prevention of the offence in future, either 

 by the fam'" delmquent or by other perfons in fimilar circum- 

 ftr.r.ces. Tiie firft end is accompliihed in three ways ; by 

 taking from the oftcnder the phyfical power of committing 

 the offence ; by taking away the defire ; or by deterring 



Iiim. The other, and principal objeft of the infliftion, that 

 of reftraining others, can only he efiefted as far as the punifh- 

 ment is concerned, by the threat which it holds out of 

 fimilar infliftion. Thefe objefts, as they form the only 

 jufl motives, conflitute alfo the only juftification of punifti- 

 ments. Although tlie direft and primary objeft of punifh- 

 ment is prevention, the civil magiftrate, having provided 

 for that objeft, has another duty to perform, which is to 

 provide as far as poffible for the reparation of the injury 

 fuftained through tlie crime committed. 



The expence or coj} of any punifliment is, in the language 

 of this fyflem, the whole evil of every kind occafioned by 

 it, including the fuffering of the delinquent, tlie lofs of his 

 labour or life to the ftate. the pecuniary colt of his punifh- 

 ment ; and, in fhort, every thing endured, paid, or fore- 

 gone, in order to obtain the double preventive which the 

 punifhm.ent is intended to adminifler. The gain or profit of 

 the punifliment confifls in this preventive, or in the tendency 

 of the punifhment to fecure it. A punifhment may be 

 termed frugal or economical which produces the defired 

 effeft with as little fuffering as poffible ; and it may be 

 termed coflly or prodigal, when the fame effeft might have 

 been produced by a fmaller degree of fuffering. The real 

 value is diftinguifhed from the apparent -value, of the fuffering ; 

 the former being the aftual amount of that which is in- 

 flifted ; the latter, the portion of it which is exhibited, or 

 otherwife made known to, and underftood by the public. 

 The expence of a punifhment is equivalent to the real 

 amount ; the profit is in proportion to the apparent amount 

 only ; and hence are deduced thefe important maxims : 

 I. That, ceteris paribus, a punifhment eafily comprehended, is 

 preferable to one of difficult apprehenfion : 2. That one 

 which takes hold of the memory, is preferable to one eafily 

 forgotten : 3. That one which is as great or greater in appa- 

 rent than in real amount, is preferable to one which 13 really 

 greater than it appears to be : — the cxcefs of real amount 

 being in truth io much thrown away, fo far as regards the 

 principal objeft, of general example. 



The next fubjeft of dilcuflion comprehends the principles 

 that ought to regulate the extent of punifhment, for the 

 prevention of crimes. Thefe are contained in the follow- 

 ing propofitions. I. Tlie evil of the punifhment muft ex- 

 ceed-the advantage arifing from the crime ; fo that, generally 

 fpeaking, the flronger the temptation to commit any crime, 

 the more fevere ought to be the punifhment, fubjeft to ex- 

 ceptions in extreme cafes. 2. When the criminal aft evi- 

 dently indicates a habit or praftice, tlie punifhment fhould 

 be proportioned, not to the gain derived from a fingle 

 offence, but to the probable amount of profit flowing from 

 a courfe of fuch conduft. 3. An addition muft be made to 

 the punilliment, in order to compenfate its want of cer- 

 tainty and proximity. 4. In cafes where a temptation offers 

 for the commiflion of different crimes, a more fevere punifh- 

 ment fhould be denounced againft the greater crime. 5. The 

 more pernicious any crime is, the more fafely may a fevere 

 punifliment be ventured upon, for the chance of preventing 

 it. 6. The nominal amount of punifhment for the fame 

 crime, muft often be varied at the difcretion of the judge, 

 according to the circumftances of the delinquent, in order to 

 prcferve the real amount of fuffering. 



The qualities of punifhment, the confideration of which 

 naturally fucceeds that of the meafure or quantity, are 

 fuch as follow : it fhould be ilivifible ; invariable, or certain 

 or equal ; commenjhrable with others ; analogous to the crime; 

 exemplary; economical; remijfible ; that it fhould reftrain the 

 offender from doing harm ; conduce to his reformation ; yield 

 z. projit, in the ordinary fenfe of the \Yord ; he fimple in its 



defcription ; 



u. 



