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he happens to perceive any violent aversion entertained by the body of the people.

XXIII.

The effects of unpopularity in a mode of punishment are analogous to those of unfrugality. The unnecessary pain which denominates a punishment unfrugal, is most apt to be that which is produced on the part of the offender. A portion of superfluous pain is in like manner produced 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 increase in magnitude: an addition of a certain quantity which otherwise would be needless.*

XXIV.

This property, it is to be observed, necessarily. supposes, on the part of the people, some prejudice or other, which it is the business of the legislator to endeavour to correct. For if the aversion to the

Mischiefs resulting from the unpopu larity of a punishment -discontent

among the

people, and the law.

weakness in

This property prejudice

supposes a

which the legislator ought to

cure.

* See ch. xiii. [Cases unmeet] § v.

Property 11.
Remissibili-

ty.

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.

The eleventh and last of all the properties that seem to be requisite in a lot of punishment, is 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 very particular, 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

* See ch. xiii. [Cases unmeet] § iv. par. iv.
+ See view of the Hard Labour Bill, p. 109.

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 from 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 irremissible. 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 cannot, 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

To obtain all

these pro

important object, in comparison of that of reforma-
tion.* 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 few mo-
ments, 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 on the
part of the offender, that can warrant the remitting
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 punish-
ment 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, in-
deed, is apt enough to be the case, under the im-
perfect systems that are as yet on foot: and there-
fore, 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 pro-
portion above laid down should be observed. In
such a system, therefore, the utility of this property
would rest solely on the former ground.

XXVI.

1

Upon taking a survey of the various possible modes

* See ch. xiii, [Cases unmeet] ii, note.

of punishment, it will appear evidently, that there is not any one of them that possesses 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 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.

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It may not be amiss to bring together, and exhibit The foregoing properties in one view, the eleven properties above established. recapitulat. 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 alene it can be efficacious; and at the same time to the 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.

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ed.

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