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.