I. We have seen that the general object of all laws is to prevent mischief; that is to say, when it is worth while; but that, where there are no other means of doing this than punishment, there are four cases in which it is not worth while.
II. When it is worth while, there are four subordinate designs or objects, which, in the course of his endeavours to compass, as far as may be, that one general object, a legislator, whose views are governed by the principle of utility, comes naturally to propose to himself.
III. 1. His first, most extensive, and most eligible object, is to prevent, in as far as it is possible, and worth while, all sorts of offenses whatsoever: in other words, so to manage, that no offense whatsoever may be committed.
IV. 2. But if a man must needs commit an offense of some kind or other, the next object is to induce him to commit an offense less mischievous, rather than one more mischievous: in other words, to choose always the least mischievous, of two offenses that will either of them suit his purpose.
V. 3. When a man has resolved upon a particular offense, the next object is to dispose him to do no more mischief than is necessary to his purpose: in other words, to do as little mischief as is consistent with the benefit he has in view.
VI. 4. The last object is, whatever the mischief be, which it is proposed to prevent, to prevent it at as cheap a rate as possible.
VII. Subservient to these four objects, or purposes, must be the rules or canons by which the proportion of punishments to offenses is to be governed.
VIII. Rule 1. The first object, it has been seen, is to prevent, in as far as it is worth while, all sorts of offenses; therefore, The value of the punishment must not less in any case than what is sufficient to outweigh that of the profit of the offense. If it be, the offence (unless some other considerations, independent of the punishment should intervene and operate efficaciously in the character of tutelary motives) will be sure to be to committed notwithstanding: the whole lot of punishment will be thrown away: it will be altogether inefficacious.
IX. The above rule has been often objected to, on account of its seeming harshness: but this can only have happened for want of its being properly understood. The strength of the temptation, cæteris paribas, is as the profit of the offense: the quantum of the punishment must rise with the profit of the offense: cæteris paribas, it must therefore rise with the strength of the temptation. This there is no disputing. True it is, that the stronger the temptation, the less conclusive is the indication which the act of delinquency affords of the depravity of the offender's disposition. So far then as the absence of any aggravation, arising from extraordinary depravity of disposition, may operate, or at the utmost, so far as the presence of a ground of extenuation, resulting from the innocence or beneficence of the offender's disposition, can operate, the strength of the temptation may operate in abatement of the demand for punishment. But it can never operate so far as to indicate the propriety of making the punishment ineffectual, which it is sure to be when brought below the level of the apparent profit of the offense. The partial benevolence which should prevail for the reduction of it below this level, would counteract as well those purposes which such a motive would actually have in view, as those more extensive purposes which benevolence ought to have in view; it would be cruelty not only to the public, but the very persons in whose behalf in pleads: in its effects, I mean, however opposite in its intention. Cruelty to the public, that is cruelty to the innocent, by suffering them, for wnat of an adequate protection, to lie exposed to the mischief of the offense: cruelty even the offender himself, by punishing him to no purpose, and without the chance of compassing that beneficial end, by which alone the introduction of the evil of punishment is to be justified.
X. Rule 2. But whether a given offence shall be prevented in a given degree by a given quantity of punishment, is never any thing better than a chance; for the purchasing of which, whatever punishment is employed, is so much expended into advance. However, for the sake of giving it the better chance of outweighing the profit of the offence, The greater the mischief of the offense, the greater is the expense which it may be worth while to be at, in the way of punishment.
Where two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less.