Part 29

The business of government is to promote the happiness of society by rewarding and punishing, especially by punishing acts tending to diminish happiness. An act demands punishment in proportion to its tendency to diminish happiness--i.e., as the sum of its consequences does so. Only such consequences are referred to as influence the production of pain or pleasure. The intention, as involving other consequences, must also be taken into consideration. And the intention depends on the state both of the will and of the understanding as to the circumstances--consciousness, unconsciousness, or false consciousness regarding them. Hence with regard to each action we have to consider (1) the act itself, (2) the circumstances, (3) the intentionality, (4) the attendant consciousness, and also (5) the motive, and (6) the general disposition indicated.

Acts are positive and negative--i.e., of commission and omission, or forbearance; external or corporal, and internal or mental; transitive, affecting some body other than the agent's, or intransitive; transient or continued (mere repetition is not the same as habit). Circumstances are material when visibly related to the consequences in point of casuality, directly or indirectly. They may be criminative, or exculpative, or aggravative, or evidential.

The intention may regard the act itself only, or its consequences also--for instance, you may touch a man intentionally, and by doing so cause his death unintentionally. But you cannot intend the consequences--though you may have desired them--without intending the action. The consequences may be intended directly or indirectly, and may or may not be the only thing intended. The intention is good or bad as the consequences intended are good or bad.

But these actually depend on the circumstances which are independent of the intention; here the important point is the man's consciousness of the circumstances, which are objects not of the will, but of the understanding. If he is conscious of the circumstances and of their materiality, the act is advised; if not, unadvised. Unadvisedness may be due either to heedlessness or to misapprehension. And here we may remark that we may speak of a bad intention, though the motive was good, if the consequences intended were bad, and vice versâ. In this sense also, the intention may be innocent--that is, not bad, without being positively good.

Of motives, we are concerned with practical motives only, not those which are purely speculative. These are either internal or external; either events in esse, or events in prospect. The immediate motive is an internal motive in esse--an awakened pleasure or pain at the prospect of pleasure or pain. All others are comparatively remote.

Now, since the motive is always primarily to produce some pleasure or prevent some pain, and since pleasure is identical with good, and pain with evil, it follows that no motive is in itself bad. The motive is good if it tends to produce a balance of pleasure; bad, if a balance of pain. Thus any and every motive may produce actions good, indifferent, or bad. Hence, in cataloguing motives, we must employ only neutral terms, i.e., not such as are associated with goodness as--piety, honour--or with badness--as lust, avarice.

The motives, of course, correspond to the various pleasures as previously enumerated. They may be classified as good, bad, or indifferent, according as their consequences are more commonly good, bad, or indifferent; but the dangers of such classification are obvious. In fact, we cannot affirm goodness, badness, or indifference of motive, except in the particular instance. A better classification is into the social--including goodwill, love of reputation, desire of amity, religion; dissocial--displeasure; self-regarding--physical desire, pecuniary interest, love of power, self-preservation.

Of all these, the dictates of goodwill are the surest of coinciding with utility, since utility corresponds precisely to the widest and best-advised goodwill. Even here, however, there may be failure, since benevolence towards one group may clash with benevolence towards another. Next stands love of reputation, which is less secure, since it may lead to asceticism and hypocrisy. Third comes the desire of amity, valuable as the sphere in which amity is sought is extended, but also liable to breed insincerity. Religion would stand first of all if we all had a correct perception of the divine goodness; but not when we conceive of God as malevolent or capricious; and, as a matter of fact, our conception of the Deity is controlled by our personal biases.

The self-regarding motives are, ex hypothesi, not so closely related to utility as the social motives, and the dissocial motives manifestly stand at the bottom of the scale. In respect to any particular action there may be a conflict of motives, some impelling towards it, others restraining from it; and any motive may come in conflict with any other motive. It will be found hereafter that in the case of some offences the motive is material in the highest degree, and in others wholly immaterial; in some cases easy, and in others impossible to gauge.

III.--The Principles of Punishment

Goodness or badness, then, cannot be predicated of the motive. What is good or bad in the man when actuated by one motive or another is his disposition, or permanent attitude of mind, which is good or bad as tending to produce effects beneficial to the community. It is to be considered in regard to its influence on (1) his own happiness; (2) other people's. The legislator is concerned with it so far as it is mischievous to others. A man is held to be of a mischievous disposition when it is presumed--for it is a mere presumption--that he inclines to acts which appear to him mischievous. Here it is that "intentionality" and "consciousness" come in.

Where the tendency of the act is good, and the motive is a social one, a good disposition is indicated; where the tendency is bad, and the motive is self-regarding, a bad disposition is indicated. Otherwise, the indication of good or bad disposition may be very dubious or non-existent; as may easily be seen by constructing examples. Now, our problem is to measure the depravity of a man's disposition, which may be defined as the sum of his intentions. The causes of intentions are motives. The social motives may be called tutelary, as tending to restrain from mischievous intentions; but any motive may become tutelary on occasion. Love of ease, and desire of self-preservation, in the form of fear of punishment, are apt to be tutelary motives.

Now we can see that the strength of a temptation equals the sum of the impelling motives, minus the sum of the tutelary motives. Hence, the more susceptible a man is to the standing tutelary motives, the less likely is he to yield to temptation; in other words, the less depraved is his disposition. Hence, given the strength of the temptation, the mischievousness of the disposition is as the apparent mischievousness of the act. Given the apparent mischievousness of the act, the less the temptation yielded to, the greater the depravity of disposition; but the stronger the temptation, the less conclusive is the evidence of depravity. It follows that the penalty should be increased--i.e., the fear of punishment should be artificially intensified, in proportion as, apart from that fear, the temptation is stronger.

We now come to consequences. The mischief of the act is the sum of its mischievous consequences, primary and secondary. The primary mischief subdivides into original, i.e., to the sufferer in the first instance; and derivative, to the definite persons who suffer as a direct consequence, whether through their interest, or merely through sympathy.

The secondary mischiefs, affecting not specific persons but the community, are actual danger, or alarm--the apprehension of pain. For the occurrence of the act points to the possibility of its repetition; weakening the influence both of the political and of the moral sanction. An act of which the primary consequences are mischievous may have secondary beneficial consequences, which altogether outweigh the primary mischief--e.g., the legal punishment of crime. The circumstances influencing the secondary mischiefs of alarm and danger are the intentionality, the consciousness, the motive, and the disposition; danger depending on the real, and alarm on the apparent, state of mind, though the real and the apparent coincide more commonly than not.

Between the completely intentional and completely unintentional act there are various stages, depending on the degree of consciousness, as explained above. The excellence of the motive does not obliterate the mischievousness of the act; nor vice versâ; but the mischief may be aggravated by a bad motive, as pointing to greater likelihood of repetition. This is less the case, however, when the motive is dissocial, such motives being generally less constant, as having reference to a particular, not a general, object; the religious motive, as being more constant, is more pernicious when it has a mischievous issue.

Punishment, being primarily mischievous, is out of place when groundless, inefficacious, unprofitable, or needless. Punishment is inefficious when it is ex post facto, or extra-legal, or secret; or in the case of irresponsible (including intoxicated) persons; and also so far as the intention of the act was incomplete, or where the act was actually or practically under compulsion. It is unprofitable when under ordinary circumstances the evils of the punishment outweigh those of the offence; this subject, however, will be more fully dealt with later. It is needless when the end in view can be as well or better attained otherwise.

Now, the aim of the legislator is (1) to prevent mischief altogether; (2) to minimise the inclination to do mischief; (3) to make the prevention cheap. Hence, (1) the punishment must outweigh the profit of the offence to the doer; (2) the greater the mischief, the greater the expense worth incurring to prevent it; (3) alternative offences which are not equally mischievous, as robbery and robbery with murder, must not be equally punished; (4) the punishment must not be excessive, and therefore should take into account the circumstances influencing sensibility; (5) so also must the weakness of the punishment due to its remoteness, and the impelling force of habit.

The properties of punishment necessary to its adjustment to a particular offence are these: (1) variability in point of quantity, so that it shall be neither excessive nor deficient; (2) equality, so that when applied in equal degree, it shall cause equal pain--e.g., banishment may mean much to one man, little to another; (3) commensurability with other punishments; (4) characteristicalness, or appropriateness; (5) exemplarity--it must not seem less than it is in fact; (6) frugality--none of the pain it causes is to be wasted. Minor desirable qualities are (7) subserviency to reformation of character; (8) efficiency in disabling from mischief; (9) subserviency to compensation; (10) popularity, i.e., accordant to common approbation; (11) remissibility.

IV.--Division of Offences

An offence--a punishable act--is constituted such by the community; though it ought not to be an offense unless contrary to utility, it may be so. It is assumed to be a detrimental act; detrimental therefore to some person or persons, whether the offender himself or other assignable persons, or to persons not assignable.

Offences against assignable persons other than the offender form the first class; offences against individuals, or private offences, or private extra-regarding offences. The second class is formed by semi-public offences, i.e., not against assignable individuals, nor the community at large, but a separable group in the community, e.g., a class or a locality. The third class are those which are simply self-regarding; the fourth, against the community at large; the fifth, multiform or heterogeneous, comprising falsehood and breaches of trust.

The first class may be subdivided into offences against (1) the person, (2) reputation, (3) property, (4) condition--i.e., the serviceableness to the individual of other persons, (5) person and property together, (6) person and reputation together.

The second, "semi-public," class, being acts which endanger a portion of the community, are those operating through calamity, or of mere delinquency. The latter are subdivided on the same lines as private offences. So with the third or self-regarding class.

In class four, public offences fall under eleven divisions: (1) offences against external security--i.e., from foreign foes; (2) against justice--i.e., the execution of justice; (3) against the preventive branch of police; (4) against the public force--i.e., military control; (5) against increase of national felicity; (6) against public wealth--i.e., the exchequer; (7) against population; (8) against national wealth--i.e., enrichment of the population; (9) against sovereignty; (10) against religion; (11) against national interests in general.

In class five, falsehood comprises simple falsehoods, forgery, personation, and perjury; again distributable like the private offences. In the case of trusts, there are two parties--the trustee and the beneficiary. Offences under this head cannot, for various reasons, be conveniently referred to offences against property or condition, which also must be kept separate from each other. As regards the existence of a trust: as against the trustee, offences are (1) wrongful non-investment of trust, and wrongful interception of trust, where the trusteeship is to his benefit; or (2) where it is troublesome, wrongful imposition of trust. Both may similarly be offences against the beneficiary. As regards the exercise of the trust, we have negative breach of trust, positive breach of trust, abuse of trust, disturbance of trust, and bribery.

We may now distribute class one--offences against the individual--into genera; to do so with the other classes would be superfluous. Simple offences against the person are actions referring to his actual person, body or mind, or external objects affecting his happiness. These must take effect either through his will, or not. In the former case, either by constraint, or restraint, confinement, or banishment.

In any case the effect will be mortal or not mortal; if not mortal, reparable or irreparable injury when corporal, actual, or apprehended, sufferance when mental. So the list stands--simple and irreparable corporal injuries, simple injurious restraint or constraint, wrongful confinement or banishment, homicide or menacement, actual or apprehended mental injuries. Against reputation the genera of offences are (i) defamation, (2) vilification. Of offences against property, simple in their effects, whether by breach of trust or otherwise, the genera are: wrongful non-investment, interception, divestment, usurpation, investment, of property; wrongful withholding of services, destruction, occupation, or detainment, embezzlement, theft, defraudment, extortion.