176. (3) We come now to the third of the questions raised [l] in
regard to the individual's right to free life, the question under
what conditions that right may be forfeited; the question, in other
words, of the state's right of punishment. The right (i.e. the power
secured by social recognition) of free life in every man rests on
the assumed capacity in every man of free action contributory to
social good ('free' in the sense of determined by the idea of a
common good. Animals may and do contribute to the good of man, but
not thus 'freely'). This right on the part of associated men implies
the right on their part to prevent such actions as interfere with
the possibility of free action contributory to social good. This
constitutes the right of punishment, the right so far to use force
upon a person (to treat him as an animal or a thing) as may be
necessary to save others from this interference.
[1] [Above, sec. 156. RLN]
177. Under what conditions a person needs to be thus dealt with,
what particular actions on his part constitute such an interference,
is a question which can only be answered when we have considered
what powers in particular need to be secured to individuals or to
officials in order to the possibility of free action of the kind
described. Every such power is a right of which the violation, if
intended as a violation of a right, requires a punishment, of which
the kind and amount must depend on the relative importance of the
right and of the extent to which its general exercise is threatened.
Thus every theory of rights in detail must be followed by, or
indeed implies, a corresponding theory of punishment in detail, a
theory which considers what particular acts are punishable, and how
they should be punished. The latter cannot precede the former: all
that can be done here is further to consider what general rules of
punishment are implied in the principle on which we hold all right of
punishment to rest, and how far in the actual practice of punishment
that principle has been realised.
178. It is commonly asked whether punishment according to its proper
nature is retributive or preventive or reformatory. The true answer
is that it is and should be all three. The statement, however,
that the punishment of the criminal by the state is retributive,
though true in a sense that will be explained directly, yet so
readily lends itself to a misunderstanding, that it is perhaps best
avoided. It is not true in the sense that in legal punishment as it
should be there survives any element of private vengeance, of the
desire on the part of the individual who has received a hurt from
another to inflict an equivalent hurt in return. It is true that
the beginning of punishment by the state first appears in the form
of a regulation of private vengeance, but it is not therefore to be
supposed that punishment by the state is in any way a continuation of
private vengeance. It is the essence of the former to suppress and
supersede the latter, but it only does so gradually, just as rights
in actuality are only formed gradually. Private vengeance belongs
to the state of things in which rights are not as yet actualised;
in the sense that the powers which it is for the social good that
a man should be allowed to exercise, are not yet secured to him
by society. In proportion as they are actualised, the exercise of
private vengeance must cease. A _right_ of private vengeance is an
impossibility; for, just so far as the vengeance is private, the
individual in executing it is exercising a power not derived from
society nor regulated by reference to social good, and such a power
is not a right. Hence the view commonly taken by writers of the
seventeenth and eighteenth centuries implies an entire misconception
of the nature of a right; the view, viz., that there first existed
rights of self-defence and self-vindication on the part of
individuals in a state of nature, and that these came to be devolved
on a power representing all individuals, so that the state's right
of using force against those men who use or threaten force against
other men, is merely the sum or equivalent of the private rights
which individuals would severally possess if there were no public
equivalent for them. This is to suppose that to have been a right
which in truth, under the supposed conditions, would merely have been
animal impulse and power, and public right (which is a pleonasm, for
all right is public) to have resulted from the combination of these
animal impulses and powers: it is to suppose that from a state of
things in which 'homo homini lupus' by mere combination of wolfish
impulses, there could result the state of things in which 'homo
homini deus.'
179. In a state of things in which private vengeance for hurt
inflicted was the universal practice, there could be no rights at
all. In the most primitive society in which rights can exist, it
must at least within the limits of the family be suppressed by
that authority of the family or its head which first constitutes
rights. In such a society it is only on the members of another
family that a man may retaliate at pleasure a wrong done to him, and
then the vengeance is not, strictly speaking, taken by individual
upon individual, though individuals may be severally the agent and
patient of it, but by family upon family. Just because there is as
yet no idea of a state independent of ties of birth, much less of
a universal society from relation to which a man derives rights,
there is no idea of rights attaching to him as a citizen or as a
man, but only as a member of a family. That social right, which is
at once a right of society over the individual, and a right which
society communicates and secures to the individual, appears, so far,
only as a control exercised by the family over its members in their
dealings with each other, as an authorisation which it gives them in
prosecuting their quarrels with members of another family, and at the
same time to a certain extent as a limitation on the manner in which
feuds between families may be carried on, a limitation generally
dependent on some religious authority equally recognised by the
families at feud.
180. From this state of things it is a long step to the régime of
law in a duly constituted state. Under it the arm of the state alone
is the organ through which force may be exercised on the individual;
the individual is prohibited from averting violence by violence,
except so far as is necessary for the immediate protection of life,
and altogether from avenging wrong done to him, on the understanding
that the society, of which he is an organ and from which he derives
his rights, being injured in every injury to him, duly protects him
against injury, and when it fails to prevent such injury from being
done, inflicts such punishment on the offender as is necessary for
future protection. But the process from the one state of things to
the other, though a long one, consists in the further development of
that social right [1] which properly speaking was the only right the
individual ever had, and from the first, or ever since a permanent
family tie existed, was present as a qualifying and restraining
element in the exercise of private vengeance so far as that exercise
partook at all in the nature of a right. The process is not a
continuance of private vengeance under altered forms, but a gradual
suppression of it by the fuller realisation of the higher principle
which all along controlled it.
[1] 'Social right,' i.e. right belonging to a society of persons
recognising a common good, and belonging through membership of the
society to the several persons constituting it. The society to which
the right belongs, is in principle or possibility a society of all
men as rendered capable of free intercourse with each other by the
organisation of the state. Actually at first it is only this or
that family; then some association of families; finally the state,
as including all other forms of association, reconciling the rights
which arise out of them, and thus the most perfect medium through
which the individual can contribute to the good of mankind and
mankind to his.
181. But it will be asked, how upon this view of the nature
of punishment as inflicted by the state it can be considered
retributory. If no private vengeance, no vengeance of the injured
individual, is involved in punishment, there can be no vengeance in
it at all. The conception of vengeance is quite inappropriate to the
action of society or the state on the criminal. The state cannot be
supposed capable of vindictive passion. Nor, if the essence of crime
is a wrong done to society, does it admit of retaliation upon the
person committing it. A hurt done to an individual can be requited by
the infliction of a like hurt upon the person who has done it; but no
equivalent of wrong done to society can be paid back to the doer of
it.
182. It is true that there is such a thing as a national desire
for revenge [1] (France and Germany): and, if a state = a nation
organised in a certain way, why should it not be 'capable of
vindictive passion'? No doubt there is a unity of feeling among the
members of a nation which makes them feel any loss of strength, real
or apparent, sustained by the nation in its corporate character, as
a hurt or disgrace to themselves, which they instinctively desire to
revenge. The corporate feeling is so strong that individuals feel
themselves severally hurt in the supposed hurt of the nation. But
when it is said that a crime is an offence against the state, it is
not meant that the body of persons forming the nation feel any hurt
in the sense in which the person robbed or wounded does, such a hurt
as excites a natural desire for revenge. What is meant is that there
is a violation of a system of rights which the nation has, no doubt,
an interest in maintaining, but a purely social interest, quite
different from the egoistic interest of the individual of which the
desire for vengeance is a form. A nation is capable of vindictive
feeling, but not so a nation as acting through the medium of a
settled, impartial, general law for the maintenance of rights, and
that is what we mean when we talk of the state as that against which
crimes are committed and which punishes them.
[1] 'Happy shall he be that rewardeth thee as thou hast served us.'
183. It is true that when a crime of a certain sort, e.g. a
cold-blooded murder, has been committed, a popular sympathy with
the sufferer is excited, which expresses itself in the wish to
'serve out' the murderer. This has some resemblance to the desire
for personal revenge, but is really quite different, because not
egoistic. Indignation against wrong done to another has nothing in
common with a desire to revenge a wrong done to oneself. It borrows
the language of private revenge, just as the love of God borrows the
language of sensuous affection. Such indignation is inseparable from
the interest in social well-being, and along with it is the chief
agent in the establishment and maintenance of legal punishment. Law
indeed is necessarily general, while indignation is particular in its
reference; and accordingly the treatment of any particular crime,
so far as determined by law, cannot correspond with the indignation
which the crime excites; but the law merely determines the general
category under which the crime falls, and fixes certain limits to
the punishment that may be inflicted under that category. Within
those limits discretion is left to the judge as to the sentence that
he passes, and his sentence is in part influenced by the sort of
indignation which in the given state of public sentiment the crime
is calculated to excite; though generally much more by his opinion
as to the amount of terror required for the prevention of prevalent
crime. Now what is it in punishment that this indignation demands? If
not the sole foundation of public punishment, it is yet inseparable
from that public interest, on which the system of rights, with the
corresponding system of punishments protective of rights, depends.
In whatever sense then this indignation demands retribution in
punishment, in that sense retribution would seem to be a necessary
element in punishment. It demands retribution in the sense of
demanding that the criminal should have his due, should be dealt with
according to his deserts, should be punished justly.
184. This is quite a different thing from an equivalence between
the amount of suffering inflicted by the criminal and that which
he sustains in punishment. The amount of suffering which is caused
by any crime is really as incalculable as that which the criminal
endures in punishment, whatever the punishment. It is only in the
case of death for murder that there is any appearance of equivalence
between the two sufferings, and in this case the appearance is quite
superficial. The suffering involved in death depends almost entirely
on the circumstances, which are absolutely different in the case
of the murdered man and in that of the man executed for murder.
When a man is imprisoned with hard labour for robbery, there is not
even an appearance of equivalence of suffering between the crime
and the punishment. In what then does the justice of a punishment,
or its correspondence with the criminal's deserts consist? It will
not do to say that these terms merely represent the result of an
association of ideas between a crime and the penalty which we are
accustomed to see inflicted on it; that society has come to attach
certain penalties to certain actions as a result of the experience
(1) of suffering and loss caused by those acts, and (2) of the kind
of suffering of which the expectation will deter men from doing them;
and that these penalties having become customary, the onlookers and
the criminal himself, when one of them is inflicted, feel that he has
got what was to be expected, and call it his due or desert or a just
punishment. If this were the true account of the matter, there would
be nothing to explain the difference between the emotion excited by
the spectacle of a just punishment inflicted, or the demand that it
should be inflicted, on the one side, and on the other that excited
by the sight of physical suffering following according to the usual
course of things upon a physical combination of circumstances, or the
expectation that such suffering will follow. If it is said that the
difference is explained by the fact that in the one case both the
antecedent (the criminal act) and the consequent represent voluntary
human agency, while in the other they do not, we reply, Just so, but
for that reason the conception of a punishment as just differs wholly
from any conception of it that could result either from its being
customary, or from the infliction of such punishment having been
commonly found a means for protecting us against hurt.
185. The idea of punishment implies on the side of the person
punished at once a capacity for determination by the conception of a
common or public good, or in other words a practical understanding of
the nature of rights as founded on relations to such public good, and
an actual violation of a right or omission to fulfil an obligation,
the right or obligation being one of which the agent might have
been aware and the violation or omission one which he might have
prevented. On the side of the authority punishing, it implies equally
a conception of right founded on relation to public good, and one
which, unlike that on the part of the criminal, is realised in act; a
conception of which the punitive act, as founded on a consideration
of what is necessary for the maintenance of rights, is the logical
expression. A punishment is unjust if either element is absent; if
either the act punished is not a violation of known rights or an
omission to fulfil known obligations of a kind which the agent might
have prevented, or the punishment is one that is not required for
the maintenance of rights, or (which comes to the same thing), if
the ostensible rights for the maintenance of which the punishment
is required are not real rights, are not liberties of action or
acquisition which there is any real public interest in maintaining.
186. When the specified conditions of just punishment are fulfilled,
the person punished himself recognises it as just, as his due or
desert, and it is so recognised by the onlooker who thinks himself
into the situation. The criminal, being susceptible to the idea of
public good, and through it to the idea of rights, though this idea
has not been strong enough to regulate his actions, sees in the
punishment its natural expression. He sees that the punishment is his
own act returning on himself, in the sense that it is the necessary
outcome of his act in a society governed by the conception of rights,
a conception which he appreciates and to which he does involuntary
reverence.
It is the outcome of his act, or his act returning upon himself, in
a different way from that in which a man's act returns on himself
when, having misused his body, he is visited according to physical
necessity by painful consequences. The cause of the suffering which
the act entails in the one case is the relation of the act to a
society governed by the conception of rights; in the other it is not.
For that reason, the painful consequence of the act to the doer in
the one case is, in the other is not, properly a punishment. We do
indeed commonly speak of the painful consequences of imprudent or
immoral acts ('immoral' as distinct from 'illegal') as a punishment
of them, but this is either metaphorically or because we think of
the course of the world as regulated by a divine sovereign, whom we
conceive as a maintainer of rights like the sovereign of a state.
We may think of it as divinely regulated, and so regulated with a
view to the realisation of moral good, but we shall still not be
warranted in speaking of the sufferings which follow in the course of
nature upon certain kinds of conduct as punishments, according to the
distinctive sense in which crime is punished, unless we suppose the
maintenance of rights to be the object of the moral government of the
world,--which is to put the cart before the horse; for, as we have
seen, rights are relative to morality, not morality to rights (the
ground on which certain liberties of action and acquisition should
be guaranteed as rights being that they are conditions of the moral
perfection of society).
While there would be reason, then, as against those who say that the
punishment of crime is merely preventive, in saying that it is also
retributive, if the needed correction of the 'merely preventive'
doctrine could not be more accurately stated, it would seem that
the truth can be more accurately stated by the proposition that
punishment is not justified unless it is just, and that it is not
just unless the act punished is an intentional violation of real
right or neglect of real obligation which the agent could have
avoided (i.e. unless the agent knowingly and by intentional act
interferes with some freedom of action or acquisition which there is
a public interest in maintaining), and unless the future maintenance
of rights requires that the criminal be dealt with as he is in the
punishment.[1]
[1] The conceptions of the just and of justice implied in this
statement of the conditions of just punishment may be expressed
briefly as follows. 'The just' = that complex of social conditions
which for each individual is necessary to enable him to realise his
capacity of contributing to social good. 'Justice' is the habit of
mind which leads us to respect those conditions in dealing with
others,--not to interfere with them so far as they already exist,
and to bring them into existence so far as they are not found in
existence.
187. It is clear, however, that this requirement, that punishment of
crime should be just, may be covered by the statement that in its
proper nature it is preventive, if the nature of that which is to be
prevented by it is sufficiently defined. Its proper function is, in
the interest of rights that are genuine (in the sense explained), to
prevent actions of the kind described by associating in the mind of
every possible doer of them a certain terror with the contemplation
of the act,--such terror as is necessary on the whole to protect the
rights threatened by such action. The whipping of an ill-behaved
dog is preventive, but not preventive in the sense in which the
punishment of crime is so, because (1) the dog's ill conduct is not
an intentional violation of a right or neglect of a known obligation,
the dog having no conception of right or obligation, and (2) for
the same reason the whipping does not lead to the association of
terror in the minds of other dogs with the violation of rights and
neglect of obligations. To shoot men down who resist a successful
_coup d'état_ may be effectually preventive of further resistance
to the government established by the _coup d'état_, but it does not
satisfy the true idea of punishment, because the terror produced by
the massacre is not necessary for the protection of genuine rights,
rights founded on public interest. To hang men for sheep-stealing,
again, does not satisfy the idea; because, though it is a genuine
right that sheep-stealing violates, in a society where there was
any decent reconciliation of rights no such terror as is caused
by the punishment of death would be required for the protection
of the right. It is because the theory that punishment is 'merely
preventive' favours the notion that the repetition of any action
which any sufficient body of men find inconvenient may justifiably
be prevented by any sort of terror that may be convenient for the
purpose, that it requires to be guarded by substituting for the
qualifying 'merely' a statement of what it is which the justifiable
punishment prevents and why it prevents it.
188. But does our theory, after all has been said about the
wrongness of punishment that is not just, afford any standard for
the apportionment of just punishment, any criterion of the amount of
interference with a criminal's personal rights that is appropriate to
his crime, except such as is afforded by a prevalent impression among
men as to what is necessary for their security? Can we construe it so
as to afford such a criterion, without at the same time condemning
a great deal of punishment which yet society could be never brought
to dispense with? Does it really admit of being applied at all in
the presence of the admitted impossibility of ascertaining the
degree of moral guilt of criminals, as depending on their state of
character or habitual motives? How, according to it, can we justify
punishments inflicted in the case of 'culpable negligence,' e.g. when
an engine-driver, by careless driving, for which we think very little
the worse of him, is the occasion of a bad accident, and is heavily
punished in consequence?
189. It is true that there can be no _a priori_ criterion of just
punishment, except of an abstract and negative kind. We may say that
no punishment is just, unless the rights which it serves to protect
are powers on the part of individuals or corporations of which the
general maintenance is necessary to the well-being of society on
the whole, and unless the terror which the punishment is calculated
to inspire is necessary for their maintenance. For a positive and
detailed criterion of just punishment, we must wait till a system
of rights has been established in which the claims of all men, as
founded on their capacities for contributing to social well-being,
are perfectly harmonised, and till experience has shown the degree
and kind of terror with which men must be affected in order to the
suppression of the anti-social tendencies which might lead to the
violation of such a system of rights. And this is perhaps equivalent
to saying that no complete criterion of just punishment can be
arrived at till punishment is no longer necessary; for the state of
things supposed could scarcely be realised without bringing with it
an extinction of the tendencies which state-punishment is needed to
suppress. Meanwhile there is no method of approximation to justice
in punishment but that which consists in gradually making the system
of established rights just, i.e. in harmonising the true claims of
all men, and in discovering by experience the really efficient means
of restraining tendencies to violation of rights. An intentional
violation of a right must be punished, whether the right violated
is one that should be a right or no, on the principle that social
well-being suffers more from violation of any established right,
whatever the nature of the right, than from the establishment as a
right of a power which should not be so established; and it can only
be punished in the way which for the time is thought most efficient
by the maintainers of law for protecting the right in question by
associating terror with its violation. This, however, does not
alter the moral duty, on the part of the society authorising the
punishment, to make its punishments just by making the system of
rights which it maintains just. The justice of the punishment depends
on the justice of the general system of rights; not merely on the
propriety with reference to social well-being of maintaining this
or that particular right which the crime punished violates, but on
the question whether the social organisation in which a criminal has
lived and acted is one that has given him a fair chance of not being
a criminal.
190. We are apt to think that the justice of a punishment depends on
some sort of equality between its magnitude and that of the crime
punished, but this notion arises from a confusion of punishment as
inflicted by the state for a wrong done to society with compensation
to the individual for damage done him. Neither a crime nor its
punishment admits of strictly quantitative measurement. It may be
said, indeed, that the greater the crime the heavier should be its
punishment, but this is only true if by the 'heavier punishment' is
understood that with which most terror is associated in the popular
imagination, and if the conception of the 'greater crime' is taken on
the one hand to exclude any estimation of the degree of moral guilt,
and, on the other hand, to be determined by an estimate not only of
the importance in the social system of the right violated by the
crime, but of the amount of terror that needs to be associated with
the crime in the general apprehension in order to its prevention. But
when its terms are thus understood, the statement that the greater
the crime the heavier should be its punishment, becomes an identical
proposition. It amounts to this, that the crime which requires most
terror to be associated with it in order to its prevention should
have most terror thus associated with it.
191. But why do the terms 'heavier punishment' and 'greater crime'
need to be thus understood? Why should not the 'greater crime' be
understood to mean the crime implying most moral wickedness, or
partly this, partly the crime which violates the more important kind
of right? Why should a consideration of the amount of terror that
needs to be associated with it in order to its prevention enter into
the determination of the 'greater crime' at all? Why again should
not the 'heavier punishment' mean simply that in which the person
punished actually suffers most pain? Why should it be taken to mean
that with which most terror is associated upon the contemplation?
In short, is not the proposition in question at once true and
significant in the sense that the crime which implies the most moral
depravity, or violates the most important right (such as the right to
life), or which does both, should be visited with the punishment that
involves most pain to the sufferer?
192. The answer is: As regards heaviness of punishment, it is not in
the power of the state to regulate the amount of pain which it causes
to the person whom it punishes. If it could only punish justly by
making this pain proportionate in each case to the depravity implied
in the crime, it could not punish justly at all. The amount of pain
which any kind of punishment causes to the particular person depends
on his temperament and circumstances, which neither the state nor
its agent, the judge, can ascertain. But if it could be ascertained,
and if (which is equally impossible) the amount of depravity implied
in each particular crime could be ascertained likewise in order to
make the pain of the punishment proportionate to the depravity,
a different punishment would have to be inflicted in each case
according to the temperament and circumstances of the criminal. There
would be an end to all general rules of punishment.
193. In truth, however, the state in its capacity as the sustainer
of rights (and it is in this capacity that it punishes) has nothing
to do with the amount of moral depravity in the criminal, and the
primary reference in punishment, as inflicted by the state, is not
to the effect of the punishment on the person punished but to its
effect on others. The considerations determining its amount should
be prospective rather than retrospective. In the crime a right has
been violated. No punishment can undo what has been done, or make
good the wrong to the person who has suffered. What it can do is
to make less likely the doing of a similar wrong in other cases.
Its object, therefore, is not to cause pain to the criminal for the
sake of causing it, nor chiefly for the sake of preventing him,
individually, from committing the crime again, but to associate
terror with the contemplation of the crime in the mind of others
who might be tempted to commit it. And this object, unlike that of
making the pain of the punishment commensurate with the guilt of the
criminal, is in the main attainable. The effect of the spectacle
of punishment on the onlooker is independent of any minute inquiry
into the degree to which it affects the particular criminal. The
attachment of equal penalties to offences that are alike in respect
of the importance of the rights which they violate, and in respect
of the ordinary temptations to them, will, on the whole, lead to
the association of an equal amount of terror with the prospect of
committing like offences in the public mind. When the circumstances,
indeed, of two criminals guilty of offences alike in both the above
respects are very greatly and obviously different, so different as to
make the operation of the same penalty upon them very conspicuously
different, then the penalty may be varied without interfering with
its terrifying effect on the public mind. We will suppose e.g. that
a fraud on the part of a respectable banker is equivalent, both in
respect of the rights which it violates and of the terror needed to
prevent the recurrence of like offences, to a burglary. It will not
follow because the burglary is punished by imprisonment with hard
labour that hard labour should be inflicted on the fraudulent banker
likewise. The infliction of hard labour is in everyone's apprehension
so different to the banker from what it is to the burglar, that its
infliction is not needed in order to equalise the terror which the
popular imagination associates with the punishment in the two cases.
194. On the same principle may be justified the consideration of
extenuating circumstances in the infliction of punishment. In fact,
whether under that name or another, they are taken account of in
the administration of criminal law among all civilised nations.
'Extenuating circumstances' is not a phrase in use among our
lawyers, but in fact the consideration of them does constantly, with
the approval of the judge, convert what would otherwise have been
conviction for murder into conviction for manslaughter, and when
there has been conviction for murder, leads to the commutation of
the sentence. This fact is often taken to show that the degree of
moral depravity on the part of the criminal, the question of his
character and motive, is and must be considered in determining the
punishment due to him. In truth, however, 'extenuating circumstances'
may very well make a difference in the kind of terror which needs
to be associated with a crime in order to the future protection of
rights, and under certain conditions the consideration of them may be
sufficiently justified on this ground. Suppose a theft by a starving
man, or a hare shot by an angry farmer whose corn it is devouring.
These are crimes, but crimes under such extenuating circumstances
that there is no need to associate very serious terror with them in
order to the protection of the essential rights of property. In the
latter case the right which the farmer violates is one which perhaps
might be disallowed altogether without interference with any right
which society is interested in maintaining. In the former case the
right violated is a primary and essential one; one which, where there
are many starving people, is in fact pretty sure to be protected by
the most stringent penalties. And it might be argued that on the
principle stated this is as it should be; that, so far from the
hunger of the thief being a reason for lightening his punishment, it
is a reason for increasing it, in order that the special temptation
to steal when far gone in hunger may, if possible, be neutralised by
a special terror associated with the commission of the crime under
those conditions. But this would be a one-sided application of the
principle. It is not the business of the state to protect one order
of rights specially, but all rights equally. It ought not therefore
to protect a certain order of rights by associating special terror
with the violation of them, when the special temptation to their
violation itself implies a violation of right in the persons of
those who are so tempted, as is the case when a general danger to
property arises from the fact that many people are on the edge of
starvation. The attempt to do so is at once ineffectual and diverts
attention from the true way of protecting the endangered right, which
is to prevent people from falling into a state of starvation. In
any tolerably organised society the condition of a man, ordinarily
honest and industrious, who is driven to theft by hunger, will be
so abnormal that very little terror needs to be associated with the
crime as so committed in order to maintain the sanctity of property
in the general imagination. Suppose again a man to be killed in a
quarrel arising out of his having tampered with the fidelity of his
neighbour's wife. In such a case 'extenuating circumstances' may
fairly be pleaded against the infliction of the extremest penalty,
because the extremest terror does not need to be associated with
homicide, as committed under such conditions, in order to the general
protection of human life, and because the attempt so to associate it
would tend, so far as successful, to weaken the general sense of the
wrong--the breach of family right--involved in the act which, in the
case supposed, provokes the homicide.
195. 'After all,' it may be said, 'this is a far-fetched way of
explaining the admission of extenuating circumstances as modifying
the punishment of crime. Why so strenuously avoid the simpler
explanation, that extenuating circumstances are taken into account
because they are held to modify the moral guilt of the crime? Is not
their recognition a practical proof that the punishment of a crime by
the state represents the moral disapproval of the community? Does it
not show that, however imperfectly the amount of punishment inflicted
on a crime may in fact correspond to its moral wickedness, it is
generally felt that it ought to do so?'
196. The answer is that there are two reasons for holding that
the state neither can nor should attempt to adjust the amount of
punishment which it inflicts on a crime to the degree of moral
depravity which the crime implies. (1) That the degree of moral
depravity implied in any crime is unascertainable. It depends on the
motive of the crime, and on this as part of the general character of
the agent; on the relation in which the habitual set of his character
stands to the character habitually set on the pursuit of goodness. No
one can ascertain this in regard to himself. He may know that he is
always far from being what he ought to be; that one particular action
of his represents on the whole, with much admixture of inferior
motives; the better tendency; another, with some admixture of better
motives, the worse. But any question in regard to the degree of
moral goodness or badness in any action of his own or of his most
intimate friend is quite unanswerable. Much less can a judge or jury
answer such a question in regard to an unknown criminal. We may be
sure indeed that any ordinary crime--nay, perhaps even that of the
'disinterested rebel'--implies the operation of some motive which
is morally bad, for though it is not necessarily the worst men who
come into conflict with established rights, it probably never can be
the best; but the degree of badness implied in such a conflict in
any particular case is quite beyond our ken, and it is this degree
that must be ascertained if the amount of punishment which the state
inflicts is to be proportionate to the moral badness implied in the
crime. (2) The notion that the state should, if it could, adjust
the amount of punishment which it inflicts on a crime to the moral
wickedness of the crime, rests on a false view of the relation of
the state to morality. It implies that it is the business of the
state to punish wickedness, as such. But it has no such business. It
cannot undertake to punish wickedness, as such, without vitiating
the disinterestedness of the effort to escape wickedness, and thus
checking the growth of a true goodness of the heart in the attempt to
promote a goodness which is merely on the surface. This, however, is
not to be understood as meaning that the punishment of crime serves
no moral purpose. It does serve such a purpose, and has its value
in doing so, but only in the sense that the protection of rights,
and the association of terror with their violation, is the condition
antecedent of any general advance in moral well-being.
197. The punishment of crime, then, neither is, nor can, nor should
be adjusted to the degree of moral depravity, properly so called,
which is implied in the crime. But it does not therefore follow that
it does not represent the disapproval which the community feels for
the crime. On the whole, making allowance for the fact that law
and judicial custom vary more slowly than popular feeling, it does
represent such disapproval. And the disapproval may fitly be called
moral, so far as that merely means that it is a disapproval relating
to voluntary action. But it is a disapproval founded on a sense of
what is necessary for the protection of rights, not on a judgment
of good and evil of that kind which we call conscience when it is
applied to our own actions, and which is founded on an ideal of
moral goodness with which we compare our inward conduct ('inward,'
as representing motives and character). It is founded essentially on
the outward aspect of a man's conduct, on the view of it as related
to the security and freedom in action and acquisition of other
members of society. It is true that this distinction between the
outward and inward aspects of conduct is not present to the popular
mind. It has not been recognised by those who have been the agents
in establishing the existing law of crimes in civilised nations.
As the state came to control the individual or family in revenging
hurts, and to substitute its penalties for private vengeance, rules
of punishment came to be enacted expressive of general disapproval,
without any clear consciousness of what was the ground of the
disapproval. But in fact it was by what have been just described as
the outward consequences of conduct that a general disapproval of
it was ordinarily excited. Its morality in the stricter or inward
sense was not matter of general social consideration. Thus in the
main it has been on the ground of its interference with the general
security and freedom in action and acquisition, and in proportion
to the apprehension excited by it in this respect, that conduct has
been punished by the state. Thus the actual practice of criminal
law has on the whole corresponded to its true principle. So far as
this principle has been departed from, it has not been because the
moral badness of conduct, in the true or inward sense, has been
taken account of in its treatment as a crime, for this has not been
generally contemplated at all, but because 'religious' considerations
have interfered. Conduct which did not call for punishment by the
state as interfering with any true rights (rights that should be
rights) has been punished as 'irreligious.' This, however, did not
mean that it was punished on the ground of moral badness, properly
so called. It meant that its consequences were feared either as
likely to weaken the belief in some divine authority on which the
established system of rights was supposed to rest, or as likely to
bring evil on the community through provoking the wrath of some
unseen power.
198. This account of the considerations which have regulated the
punishment of crimes explains the severity with which 'criminal
negligence' is in some cases punished, and that severity is justified
by the account given of the true principle of criminal law, the
principle, viz., that crime should be punished according to the
importance of the right which it violates, and to the degree of
terror which in a well-organised society needs to be associated with
the crime in order to the protection of the right. It cannot be held
that the carelessness of an engine-driver who overlooks a signal
and causes a fatal accident, implies more moral depravity than is
implied in such negligence as all of us are constantly guilty of.
Considered with reference to the state of mind of the agent, it is
on a level with multitudes of actions and omissions which are not
punished at all. Yet the engine-driver would be found guilty of
manslaughter and sentenced to penal servitude. The justification is
not to be found in distinctions between different kinds of negligence
on the part of different agents, but in the effect of the negligence
in different cases upon the rights of others. In the case supposed,
the most important of all rights, the right to life, on the part
of railway passengers depends for its maintenance on the vigilance
of the drivers. Any preventible failure in such vigilance requires
to have sufficient terror associated with it in the mind of other
engine-drivers to prevent the recurrence of a like failure in
vigilance. Such punishment is just, however generally virtuous the
victim of it is, because it is necessary to the protection of rights
of which the protection is necessary to social well-being; and the
victim of it, in proportion to his sense of justice, which means his
habit of practically recognising true rights, will recognise it as
just.
199. On this principle crimes committed in drunkenness must be dealt
with. Not only is all depravity of motive specially inapplicable to
them, since the motives actuating a drunken man often seem to have
little connection with his habitual character; it is not always the
case that a crime committed in drunkenness is even intentional.
When a man in a drunken rage kills another, he no doubt intends
to kill him, or at any rate to do him 'grievous bodily harm,' and
perhaps the association of great penal terror with such an offence
may tend to restrain men from committing it even when drunk; but
when a drunken mother lies on her child and smothers it, the hurt
is not intentional but accidental. The drunkenness, however, is not
accidental, but preventible by the influence of adequate motives.
It is therefore proper to treat such a violation of right, though
committed unknowingly, as a crime, and to associate terror with it
in the popular imagination, in order to the protection of rights by
making people more careful about getting drunk, about allowing or
promoting drunkenness, and about looking after drunken people. It is
unreasonable, however, to do this and at the same time to associate
so little terror, as in practice we do, with the promotion of
dangerous drunkenness. The case of a crime committed by a drunkard is
plainly distinguishable from that of a crime committed by a lunatic,
for the association of penal terror with the latter would tend
neither to prevent a lunatic from committing a crime nor people from
becoming lunatics.
200. The principle above stated, as that according to which
punishment by the state should be inflicted and regulated, also
justifies a distinction between crimes and civil injuries, i.e.
between breaches of right for which the state inflicts punishment
without redress to the person injured, and those for which it
procures or seeks to procure redress to the person injured without
punishment of the person causing the injury. We are not here
concerned with the history of this distinction (for which see Maine,
_Ancient Law_, chap. x, and W.E. Hearn, _The Aryan Household_, chap.
xix), nor with the question whether many breaches of right now among
us treated as civil injuries ought not to be treated as crimes,
but with the justification that exists for treating certain kinds
of breach of right as cases in which the state should interfere
to procure redress for the person injured, but not in the way of
inflicting punishment on the injurer until he wilfully resists the
order to make redress. The principle of the distinction as ordinarily
laid down, viz. that civil injuries 'are violations of rights when
considered in reference to the injury sustained by the individual,'
while crimes are 'violations of rights when considered in reference
to their evil tendency as regards the community at large' (Stephen,
Book V, chap, i), is misleading; for if the well-being of the
community did not suffer in the hurt done to the individual, that
hurt would not be a violation of a right in the true sense at all,
nor would the community have any ground for insisting that the hurt
shall be redressed, and for determining the mode in which it shall
be redressed. A violation of right cannot in truth be considered
merely in relation to injury sustained by an individual, for, thus
considered, it would not be a violation of right. It may be said that
the state is only concerned in procuring redress for civil injuries,
because, if it left an individual to procure redress in his own way,
there would be no public peace. But there are other and easier ways
of preventing fighting than by procuring redress of wrong. We prevent
our dogs from fighting, not by redressing wrongs which they sustain
from each other (of wrongs as of rights they are in the proper sense
incapable), but by beating them or tying them up. The community would
not keep the peace by procuring redress for hurt or damage sustained
by individuals, unless it conceived itself as having interest
in the security of individuals from hurt and damage, unless it
considered the hurt done to individuals as done to itself. The true
justification for treating some breaches of right as cases merely for
redress, others as cases for punishment, is that, in order to the
general protection of rights, with some it is necessary to associate
a certain terror, with others it is not.
201. What then is the general ground of distinction between those
with which terror does, and those with which it does not, need to
be associated? Clearly it is purposeless to associate terror with
breaches of right in the case where the breaker does not know that
he is violating a right, and is not responsible for not knowing it.
No association of terror with such a breach of right can prevent men
from similar breaches under like conditions. In any case, therefore,
in which it is, to begin with, open to dispute whether a breach of
right has been committed at all, e.g. when it is a question whether
a contract has been really broken, owing to some doubt as to the
interpretation of the contract or its application to a particular
set of circumstances, or whether a commodity of which someone is
in possession properly belongs to another,--in such a case, though
the judge finally decides that there has been a breach of right,
there is no ground for treating it as a crime or punishing it. If,
in the course of judicial inquiry, it turns out that there has been
fraud by one or other of the parties to the litigation, a criminal
prosecution, having punishment, not redress, for its object, should
properly supervene upon the civil suit, unless the consequences of
the civil suit are incidentally such as to amount to a sufficient
punishment of the fraudulent party. Again, it is purposeless to
associate terror with a breach of obligation which the person
committing it knows to be a breach, but of an obligation which he has
no means of fulfilling, e.g. non-payment of an acknowledged debt by
a man who, through no fault of his own, is without means of paying
it. It is only in cases of one or other of the above kinds,--cases
in which the breach of right, supposing it to have been committed,
has presumably arisen either from inability to prevent it or from
ignorance of the existence of the right,--that it can be held as an
absolute rule to be no business of the state to interfere penally but
only in the way of restoring, so far as possible, the broken right.
202. But there are many cases of breach of right which can neither
be definitely reduced to one of the above kinds, nor distinguished
from them by any broad demarcation; cases in which the breaker of a
right has been ignorant of it, because he has not cared to know, or
in which his inability to fulfil it is the result of negligence or
extravagance. Whether these should be treated penally or no, will
depend partly on the seriousness of the wrong done through avoidable
ignorance or negligence, partly on the sufficiency of the deterrent
effect incidentally involved in the civil remedy. In the case e.g. of
inability to pay a debt through extravagance or recklessness, it may
be unnecessary and inadvisable to treat the breach of right penally,
in consideration that it is indirectly punished by poverty and the
loss of reputation incidental to bankruptcy, and the creditors
should not look to the state to protect them from the consequences
of lending on bad security. The negligence of a trustee, again,
may be indirectly punished by his being obliged to make good the
property lost through his neglect to the utmost of his means. This
may serve as a sufficiently deterrent example without the negligence
being proceeded against criminally. Again, damage done to property
by negligence is in England dealt with civilly, not criminally;
and it may be held that in this case the liability to civil action
is a sufficient deterrent. On the other hand, negligence which, as
negligence, is not really distinguishable from the above, is rightly
treated criminally when its consequences are more serious; e.g. that
of the railway-servant whose negligence results in a fatal accident,
that of the bank-director who allows a misleading statement of
accounts to be published, fraudulently perhaps in the eye of the
law, but in fact negligently. As a matter of principle, no doubt,
if intentional violation of the right of property is treated as
penal equally with the violation of the right of life, the negligent
violation should be treated as penal in the one case as much as in
the other. But as the consequences of an action for damages may
be virtually though not ostensibly penal to the person proceeded
against, it may be convenient to leave those negligences which do
not, like the negligence of a railway-servant, affect the most
important rights, or do not affect rights on a very large scale as
does that of a bank-director, to be dealt with by the civil process.
203. The actual distinction between crimes and civil injuries in
English law is no doubt largely accidental. As the historians of law
point out, the civil process, having compensation, not punishment,
for its object, is the form which the interference of the community
for the maintenance of rights originally takes. The community,
restraining private vengeance, helps the injured person to redress,
and regulates the way in which redress shall be obtained. This
procedure no doubt implies the conviction that the community is
concerned in the injury done to an individual, but it is only by
degrees that this conviction becomes explicit, and that the community
comes to treat all preventible breaches of right as offences against
itself or its sovereign representative, i.e. as crimes or penal; in
the language of English law, as 'breaches of the king's peace.' Those
offences are first so treated which happen to excite most public
alarm, most fear for general safety (hence, among others, anything
thought sacrilegious). In a country like England, where no code has
been drawn up on general principles, the class of injuries that
are treated penally is gradually enlarged as public alarm happens
to be excited in particular directions, but it is largely a matter
of accident how the classification of crimes on one side and civil
injuries on the other happens to stand at any particular time. [1]
[1] See Markby, _Elements of Law_, chap. xi, especially note 1, p.
243; and Austin, Lecture XXVII. Between crimes and civil injuries
the distinction, as it actually exists, is merely one of procedure
(as stated by Austin, p. 518). The violation of right in one case is
proceeded against by the method of indictment, in the other by an
'action.' The distinction that in one case punishment is the object
of the process, in the other redress, is introduced in order to
explain the difference of procedure; and to justify this distinction
resort is had to the further distinction, that civil injury is
considered to affect the individual merely, crime to affect the
state. But in fact the action for civil injury may incidentally have
a penal result (Austin, p 521), and if it had not, many violations
of right now treated as civil injuries would have to be treated as
crimes. As an explanation therefore of the distinction between crimes
and injuries as it stands, it is not correct to say that for the
former punishment is sought, for the latter merely redress. Nor for
reasons already given is it true of any civil injury to say that it
affects, or should be considered as affecting, injured individuals
_merely_. The only distinction of principle is that between
violations of right which call for punishment and those which do
not; and those only do not call for punishment in some form or other
which arise either from uncertainty as to the right violated, or from
inability to prevent the violation.
204. According to the view here taken, then, there is no direct
reference in punishment by the state, either retrospective or
prospective, to moral good or evil. The state in its judicial action
does not look to the moral guilt of the criminal whom it punishes,
or to the promotion of moral good by means of his punishment in
him or others. It looks not to virtue and vice but to rights and
wrongs. It looks back to the wrong done in the crime which it
punishes; not, however, in order to avenge it, but in order to the
consideration of the sort of terror which needs to be associated
with such wrong-doing in order to the future maintenance of rights.
If the character of the criminal comes into account at all, it
can only be properly as an incident of this consideration. Thus
punishment of crime is preventive in its object; not, however,
preventive of any or every evil and by any and every means, but
(according to its idea or as it should be) _justly_ preventive
of _injustice_; preventive of interference with those powers of
action and acquisition which it is for the general well-being that
individuals should possess, and according to laws which allow those
powers equally to all men. But in order effectually to attain its
preventive object and to attain it justly, it should be reformatory.
When the reformatory office of punishment is insisted on, the
reference may be, and from the judicial point of view must be, not
to the moral good of the criminal as an ultimate end, but to his
recovery from criminal habits as a means to that which is the proper
and direct object of state-punishment, viz. the general protection
of rights. The reformatory function of punishment is from this point
of view an incident of its preventive function, as regulated by the
consideration of what is just to the criminal as well as to others.
For the fulfilment of this latter function, the great thing, as we
have seen, is by the punishment of an actual criminal to deter other
possible criminals; but for the same purpose, unless the actual
criminal is to be put out of the way or locked up for life, it must
be desirable to reform him so that he may not be dangerous in future.
Now when it is asked why he should not be put out of the way, it
must not be forgotten that among the rights which the state has to
maintain are included rights of the criminal himself. These indeed
are for the time suspended by his action in violation of rights, but
founded as they are on the capacity for contributing to social good,
they could only be held to be finally forfeited on the ground that
this capacity was absolutely extinct.
205. This consideration limits the kind of punishment which the
state may justly inflict. It ought not in punishing to sacrifice
unnecessarily to the maintenance of rights in general what might be
called the reversionary rights of the criminal, rights which, if
properly treated, he might ultimately become capable of exercising
for the general good. Punishment therefore either by death or by
perpetual imprisonment is justifiable only on one of two grounds;
either that association of the extremest terror with certain actions
is under certain conditions necessary to preserve the possibility of
a social life based on the observance of rights, or that the crime
punished affords a presumption of a permanent incapacity for rights
on the part of the criminal. The first justification may be pleaded
for the executions of men concerned in treasonable outbreaks, or
guilty of certain breaches of discipline in war (on the supposition
that the war is necessary for the safety of the state and that such
punishments are a necessary incident of war). Whether the capital
punishment is really just in such cases must depend, not only on
its necessity as an incident in the defence of a certain state,
but on the question whether that state itself is fulfilling its
function as a sustainer of true rights. For the penalty of death
for murder both justifications may be urged. It cannot be defended
on any other ground, but it may be doubted whether the presumption
of permanent incapacity for rights is one which in our ignorance we
can ever be entitled to make. As to the other plea, the question is
whether, with a proper police system and sufficient certainty of
detection and conviction, the association of this extremest terror
with the murderer is necessary to the security of life. Where the
death-penalty, however, is unjustifiable, so must be that of really
permanent imprisonment; one as much as the other is an absolute
deprivation of free social life, and of the possibilities of moral
development which that life affords. The only justification for
a sentence of permanent imprisonment in a case where there would
be none for capital punishment would be that, though inflicted as
permanent, the imprisonment might be brought to an end in the event
of any sufficient proof appearing of the criminal's amendment.
But such proof could only be afforded if the imprisonment were so
modified as to allow the prisoner a certain amount of liberty.
206. If punishment then is to be just, in the sense that in its
infliction due account is taken of all rights, including the
suspended rights of the criminal himself, it must be, so far as
public safety allows, reformatory. It must tend to qualify the
criminal for the resumption of rights. As reformatory, however,
punishment has for its direct object the qualification for the
exercise of rights, and is only concerned with the moralisation of
the criminal indirectly so far as it may result from the exercise
of rights. But even where it cannot be reformatory in this sense,
and over and above its reformatory function in cases where it has
one, it has a moral end. Just because punishment by the state has
for its direct object the maintenance of rights, it has, like every
other function of the state, indirectly a moral object, because true
rights, according to our definition, are powers which it is for
the general well-being that the individual (or association) should
possess, and that well-being is essentially a moral well-being.
Ultimately, therefore, the just punishment of crime is for the
moral good of the community. It is also for the moral good of the
criminal himself, unless--and this is a supposition which we ought
not to make--he is beyond the reach of moral influences. Though not
inflicted for that purpose, and though it would not the less have to
be inflicted if no moral effect on the criminal could be discerned,
it is morally the best thing that can happen to him. It is so, even
if a true social necessity requires that he be punished with death.
The fact that society is obliged so to deal with him affords the best
chance of bringing home to him the anti-social nature of his act. It
is true that the last utterances of murderers generally convey the
impression that they consider themselves interesting persons, quite
sure of going to heaven; but these are probably conventional. At
any rate if the solemn infliction of punishment on behalf of human
society, and without any sign of vindictiveness, will not breed the
shame which is the moral new birth, presumably nothing else within
human reach will.