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What makes the malignity or heinousness as
it is called of an offence according to
popular notions. The Popular measures
of the it's malignity do not indicate it's
mischievousness, and therefore are erroneous.
Malignity, what? The malignity of an offence in the popular
sense of the word which is that I use
it in, is that which makes it odious, or, in other words is
made up of those circumstances belonging to it,
which serve to make it an object of abhorrance.
Now these circumstances are not always the same
which render it mischievous. The end of our
knowing whether, and to what degree an offence
is mischievous, is only that we may know whether, & to what may know
degree to punish it. But the circumstances which render it popularly odious They But the circumstances are so far from being always
the same which render it more meet for
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punishment: that they often render it even less so.
Strength of Temptation 1st The strength of the temptation to an offence diminishes
it's malignity: it encreases the
demand for punishment. [1]
Degree of Deliberation. 2d. The degree of deliberation with which the offence was
done is a circumstance that encreases it's malignity:
but except in the instance of murder
it is a circumstance too variable in it's degrees
have any considerable effect in point of mischievousness
and too difficult to asscertain to be taken
into account for the purpose of punishment.
Moral obligation. Ingratitude. 3dly. Circumstances of merely moral obligation in which the offender
may stand to the party injured encrease
the malignity of the offence: but they contribute
nothing to the reflex mischief of it unless they
are known: which they are not near so apt to
be as those which constitute the offence itself. Now Of the whole mischief of a crime, the reflex is that which constitutes the infinitely greater share. This is one reason why an offence's having malignity does not at least to an equal degree give it mischievousness. There is another reason, why tho' it did, it would not render it meet for Punishment.
Besides, taking into consideration the set-off
that may be pleaded against them they are
scarce easily enough ascertainable to be taken
into the account for the purpose of punishment.
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4.thly The reluctance which repugnance of thos who considered it men in general
to the doing the act in question, themselves the repugnance
I mean which those who consider it feel to the doing it themselves is apt to encrease (with respect to them) it's
malignity. But this 'Tis for example the basis of the
odium which prevails against the irregularities
of the amorous appetite. But this reluctance does not encrease the mischievousness
of the act. Consider'd with respect to
each act any individual act in particular it does not
encrease its mischievousness; and considering
the species of act or the sum total of the
acts of that species, it diminishes it. For
the greater the repugnance of mankind in general
to that sort of act, that is the greater the number
of those who are to such a degree averse to
it as not to do it, the less is the danger
of it's being done, and therefore of the mischief
of it whatever that be being introduced.
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NOTE [1] The richer a man is who commits an offence
of rapacity, the more odious, is he that is the
greater is the malignity of his particular offence.
But the richer he is, the less punishment there
is need of to be inflicted on him. The richer
he is, the more responsible: the more hold
the Law has on him. The more riches he has
the less likely he is to endeavour to withdraw
himself out of the reach of the Law, which if
he is attached to the country subject to over which the Law
reaches is to put himself out of the capacity
to enjoy them. The richer he is, the more
Surface. surface he presents to the action of the Law: The poor
man has nothing but his body: and his reputation The rich
man has his body his reputation and his fortune. He
has a part more for the Law to act upon than the
Sensibility poor man has; and he is more sensible in that those
parts which are common to them both. He presents
more surface, and that surface too
more sensible.
AESTIMATION. Malignity of an act — is not it's Mischiev [BR][ ][ ]-ousness.
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