Chapter xvi,'on the proportion between punishments and offences,'gives twelve rules.The punishment,he urges,must outweigh the profit of the offence;it must be such as to make a man prefer a less offence to a greater-simple theft,for example,to violent robbery;it must be such that the punishment must be adaptable to the varying sensibility of the offender;it must be greater in 'value'as it falls short of certainty;and,when the offence indicates a habit,it must outweigh not only the profit of the particular offence,but of the undetected offences.In chapter xvii Bentham considers the properties which fit a punishment to fulfil these conditions.Eleven properties are given.The punishment must be (1)'variable,'that is,capable of adjustment to particular cases;and (2)equable,or inflicting equal pain by equal sentences.Thus the 'proportion'between punishment and crimes of a given class can be secured.In order that the punishments of different classes of crime may be proportional,the punishments should (3)be commensurable.
To make punishments efficacious they should be (4)'characteristical'or impressive to the imagination;and that they may not be excessive they should be (5)exemplary or likely to impress others,and (6)frugal.To secure minor ends they should be (7)reformatory;(8)disabling,i.e.from future offences;and (9)compensatory to the sufferer.Finally,to avoid collateral disadvantages they should be (10)popular,and (11)remittable.A twelfth property,simplicity,was added in Dumont's redaction.Dumont calls attention here to the value of Bentham's method.(59)Montesquieu and Beccaria had spoken in general terms of the desirable qualities of punishment.They had spoken of 'proportionality,'for example,but without that precise or definite meaning which appears in Bentham's Calculus.In fact,Bentham's statement,compared to the vaguer utterances of his predecessors,but still more when compared to the haphazard brutalities and inconsistencies of English criminal law,gives the best impression of the value of his method.
Bentham's next step is an elaborate classification of offences,worked out by a further application of his bifurcatory method.(60)This would form the groundwork of the projected code.I cannot,however,speak of this classification,or of many interesting remarks contained in the Principles of Penal Law,where some further details are considered.An analysis scarcely does justice to Bentham,for it has to omit his illustrations and his flashes of real vivacity.The mere dry logical framework is not appetising.I have gone so far in order to illustrate the characteristic of Bentham's teaching.It was not the bare appeal to utility,but the attempt to follow the clue of utility systematically and unflinchingly into every part of the subject.This one doctrine gives the touchstone by which every proposed measure is to be tested;and which will give to his system not such unity as arises from the development of an abstract logical principle,but such as is introduced into the physical sciences when we are able to range all the indefinitely complex phenomena which arise under some simple law of force.If Bentham's aim could have been achieved,'utility'would have been in legislative theories what gravitation is in astronomical theories.All human conduct being ruled by pain and pleasure,we could compare all motives and actions,and trace out the consequences of any given law.I shall have hereafter to consider how this conception worked in different minds and was applied to different problems:what were the tenable results to which it led,and what were the errors caused by the implied overnight of some essential considerations.
