Principles of Morals and

154/Jeremy Bentham
ment.
XXII. In the rear of all these properties may be introduced that of
popularity; a very fleeting and indeterminate kind of property, which
may belong to a lot of punishment one moment, and be lost by it the
next. By popularity is meant the property of being acceptable, or rather
not unacceptable, to the bulk of the people, among whom it is proposed
to be established. In strictness of speech, it should rather be called ab-
sence of unpopularity: for it cannot be expected,in regard to such a
matter as punishment, that any species or lot of it should be positively
acceptable and grateful to the people: it is sufficient, for the most part,
if they have no decided aversion to the thoughts of it. Now the property
of characteristicalness, above noticed, seems to go as far towards con-
ciliating the approbation of the people to a mode of punishment, as any;
insomuch that popularity may be regarded as a kind of secondary qual-
ity, depending upon that of characteristicalness. The use of inserting
this property in the catalogue, is chiefly to make it serve by way of
memento to the legislator not to introduce, without a cogent necessity,
any mode or lot of punishment, towards which 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 denomi-
nates 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 pro-
duced 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 offense 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 pun-
ishment in question were grounded on, the principle of utility, the pun-
ishment would be such as, on other accounts, ought not to be employed:

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Principles of Morals and Legislation/155
in which case its popularity or unpopularity would never be worth draw-
ing 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 ca-
prices 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 need-
ful: 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 been inflicted: that is, where the sufferer is innocent of the
offense. 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 there being
any, unless it be so much as consists of chronical punishment: such as
imprisonment, banishment, penal labour, and the like. So much as con-
sists of 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 whip-
ping, 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 condi-
tion, 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

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