conclusion. I have spoken of the enormous results of what we call
progress and civilisation. That they are in one sense enormous is, I
suppose, undeniable. That the power which we generally describe as the
command of man over nature has been immensely increased is too palpable
a fact to be denied; that there has been a corresponding change in many
political and social respects is a fact which I only mention without
seeking to say how far it has been in all respects a change for the
better. Further, I urge that this change, whatever it is, has not been
due to a change in the individual constitution, but to a change in the
social factor. And, this being so, I simply suggest that, considering
how vast is the total change thus effected, we may reasonably hope, or,
at the very least, we may reasonably endeavour to justify the hope, that
a change of great magnitude may be brought about in those directions
where we all have to regret the survival or even the development of so
much that is melancholy: of regeneration going on alongside of
amelioration. I think that the doctrine of heredity is sometimes
interpreted in such a way as to suggest the hopelessness or at least the
extreme difficulty of introducing any sensible improvement within any
limited time; and what I have tried to urge is that, if properly
understood, it does not in the least degree tend to justify such
forebodings, or to imply that we are to abandon ourselves to a
demoralising fatalism.
PUNISHMENT.
I invite you to consider a rather dry problem. I ventured to select this
topic because it has lately been my duty to occupy myself with certain
legal writings, which, perhaps, took me a little beyond my depth. They
touched, however, problems which are common to the lawyer and to the
moralist. Although not a lawyer, I am interested in some moral problems
which have also a legal aspect: What I propose to do this evening is, to
consider certain questions which lie in the region common to both
provinces of inquiry, and especially this question: What is the true
ethical theory of punishments inflicted by the criminal law? How, and in
what sense, are they to be regarded as just? There is, obviously, a
relation between the two codes--moral and legal. Murder is both a sin
and a crime: a breach of the moral law, and of the laws of every
civilised country. Yet, there is one broad and deep distinction between
the two systems of law. The moral law is essentially concerned with a
man's motives. To say that a man's conduct is wicked, is necessarily
also to say that it is the action of a bad man, or due to evil passions.
Murder is wicked, as it is the manifestation of the murderer's hatred of
his neighbour. The criminal law, on the other hand, has to deal, in the
first instance, with the external facts. It contemplates, primarily,
what a man does, not what he is. It does not attempt to punish every man
who hates his neighbour, but every man who has, in fact, killed, whether
the action springs from hatred or some other motive. Every one who
deliberately kills, unless the act falls under certain definite
exceptions, is guilty of murder. This, of course, does not imply that
the moral aspect is of no account. The exceptions are so arranged that
the legal classification corresponds roughly to the moral
classification. Under certain exceptions, killing is regarded as
justifiable homicide, and under others, it is only manslaughter, and,
therefore, receives none, or a slighter penalty. The coincidence between
the codes may thus be very close. In ninety-nine cases out of a hundred
the action condemned by the criminal law will be condemned by the
moralist. The man who is legally guilty of murder is also, almost
invariably, guilty of a great moral offence. Although, again, the moral
law applies to large classes of conduct, which are not within the
cognisance of the criminal law, it is, at least, plainly desirable that
the criminal law should condemn nothing which is not also morally wrong.
The sway of the moral law is universal; it applies to all conduct, and,
of course, to the conduct of legislators and judges: they and the law
which they define and apply should be consistent with the general law of
right and wrong. They and all of us are bound not to make virtue more
difficult nor vice easier.
But, further, the questions as to the relations between the two codes
arise in various directions. It is obvious that the criminal law has to
employ very rough and ready methods. It cannot estimate, with any
accuracy, the degree of immorality implied by any given action. It
cannot, and it does not attempt to, look closely into the secrets of a
man's heart. It cannot inquire, as a rule, how far a man's crime is the
result of bad education or bad surroundings; how far it implies thorough
corruption or only superficial faults of temper, or a misunderstanding
of some fact or doctrine. It cannot take into account a number of
metaphysical or psychological considerations which are connected with
the theory of moral responsibility. To settle such points you would have
to empanel a jury of philosophers, and the only thing of which you could
be certain would be, that such a jury would never agree upon a verdict.
Again, there are whole classes of virtues and vices with which the
criminal law is not concerned. Ingratitude, to take the common example,
is a grave vice, but one which it would be absurd to punish legally. Not
only would such an attempt involve impossible inquiries, but the attempt
would be self-defeating. If the duty of gratitude to a benefactor were
turned into a legal obligation, gratitude proper would cease to exist.
To confer a benefit would be the same thing as to acquire a right to
repayment. A man who allows his best friend to starve, or to go to the
workhouse, may be, morally, far worse than a thief; but you could not
punish him legally, without adopting a principle which, even if
practicable, would, so far as it operated, be destructive of all
disinterested friendship. The law, again, can deal only with criminals
who are found out. What proportion they may bear to the whole class of
moral offenders is not discoverable; but it is, at least, safe to say
that, for every man whom you convict of a crime, you must leave
unpunished, because undetected, another sinner who is equally deserving
of punishment. And, finally, it is apparently impossible to say, upon
any intelligible grounds, what should be the proportion between crime
and punishment. How many years' imprisonment does a man deserve for
putting out his neighbour's eye? I do not see how such a rule of three
can be stated. The good old theory of an eye for an eye and a tooth for
a tooth, seems to suggest a possible criterion. But it was difficult to
carry out. Deloraine, in the _Lay of the Last Minstrel_, has, as he
points out, killed Musgrove's brother; but, on the other hand, Musgrove
has killed Deloraine's nephew, and, besides, got a thousand marks ransom
out of Deloraine himself. Is the account to be regarded as accurately
balanced? Is one brother just equal to a nephew plus a thousand marks?
The theory, of course, is an application of an inappropriate analogy. If
we regard crime simply as a case of private injury, we may say that it
is fair that the wrong-doer should restore the thing that he has taken,
and so put matters where they were before. But this is obviously to take
a view which is quite inapplicable in most cases, and in all cases
becomes inadequate when we take the moral view, and regard crime as an
offence against society--not simply as a wrong to another individual.
For such reasons, it is apparently impossible to say that a legal
punishment can be just, in the full sense in which the moralist would
use the words. No doubt we may say,--and we wish that we could always
say,--that a man "deserves" what he has got; and that implies that we
recognise as desirable some satisfaction to our sense of justice. And,
of course, too, we demand that justice should be done in another sense
of the word; that the case, for example, should be impartially
investigated; that a man should not be punished severely because he is
poor, or because he is unpopular, or let off easily because he is a
private friend of the judge. Such demands mean that justice should not
be perverted by applying irrelevant considerations; but they leave our
previous questions untouched. The criminal law, from its nature, cannot
impose equal penalties upon all men who are equally wicked; but only
upon those who have made themselves liable: and that always involves
elements of accident; it cannot take into account at all some of the
elements upon which the depth of moral depravity essentially depends;
and it is, at least, very difficult to say what specific meaning can be
given to the proportion between crime and the suffering imposed upon the
criminal.
If, then, the legislative action must, of necessity, be very imperfect
from the moral point of view, we may try what will be the effect of
dismissing the moral question altogether, or, at least, reducing it to a
secondary place. We may, that is, consider crime not in so far as
immoral, but in so far as mischievous. Here we have the doctrine worked
out very consistently by Bentham and his followers. Pain, they said, is
an evil, the only evil; pleasure, a good, and the only good. To inflict
needless pain--pain which does not cause a balance of pleasure--upon any
one, be he a good man or be he a bad man, is, so far, wrong. For the
same reason, it is justifiable, and, indeed, right, to inflict pain, so
far as it prevents some greater evil. Hence, you should punish criminals
just so far as the pain which you inflict is less than the pain which
you prevent. It is wrong to give a single useless pang even to the worst
of men. If (according to a sentiment attributed to Bentham) a fine of
five shillings would prevent a man from committing murder, it would be
wrong to fine him seven shillings and sixpence. This gives a
justification of punishment, in so far as deterrent. It is obviously
connected with another doctrine. A man is the best judge of his own
pleasures and pains. Therefore, in so far as a man's actions affect
himself alone, they are not to be forbidden by the law. We may think
them bad or degrading; but so long as they do not affect others, the
fact that a man chooses them is a proof that they give him pleasure; and
we shall, therefore, only diminish the sum of happiness by interfering.
Now, it is plain that this distinction does not draw the line between
what is morally bad or good. Every habit which affects a man's own
character, affects, also, his capacity to fulfil his duties to others.
But this theory overlooks immorality, except so far as it happens to
involve certain extraneous consequences. We are, upon this showing, to
punish a criminal precisely in the same spirit as we are to abate a
nuisance. The thief is to be suppressed, as we are to extirpate a
mischievous weed, and to be suppressed by just as much severity as is
required for the purpose. The drunkard, so long as he confines himself
to making a beast of himself in his own room, does his neighbours no
direct injury, and must be left to enjoy the pleasure which is shown,
because he chooses it, to be a pleasure to him. Of this theory, it may,
I think, be said that, however imperfect, it is tolerably consistent,
and, moreover, that it undoubtedly does express one legitimate end of
punishment. There can be no doubt, that is, that the punishment of
murderers may be rightly defended, among other grounds, at any rate, on
the ground that it discourages the practice; though we may not fully
agree with the famous saying of the judge, "You are not hanged for
stealing sheep, but hanged in order that sheep may not be stolen". And,
further, though there are various difficulties about the distinction
between "self-regarding" and "extra-regarding" conduct, we must also, I
think, allow, in general terms, that the fact that a man's conduct has a
direct and assignable influence upon his neighbour's happiness, must
always be one reason, and, frequently, the only sufficient reason, for
suppressing it by legal penalties.
This doctrine of simple deterrence, however, seems, to most critics, to
be insufficient. It omits the moral element too completely. When a man
is punished for some revolting offence, we are not simply providing him
and his like with reasons for abstaining in future. We are, as a fact,
exposing him to infamy, sometimes more painful to bear than the
immediate penalty, and are thus, in fact, invoking the sanction of the
moral sentiment. Therefore, it is urged, we must still, whether we like
it or not, be moralists. The purely utilitarian argument has omitted one
element of the calculation. The punishment not only deters offenders,
but gratifies the feeling of resentment to moral indignation, which has
been approved by many moralists. Hence, it is urged, besides the
deterrent theory, we must make room for the vindictive theory. It is
legitimate and right to hate crime, and, therefore, to hate criminals;
and legal punishments are defensible, not merely as adding to the
motives for refraining from crime, but as gratifying the desire for
revenge, which, in early ages, was assumed in the rude modes of putting
down violence, and which, even now, should be not eradicated but
confined within legal channels and directed towards the desirable ends.
Postponing, for the present, a consideration of this proposed
emendation, let us consider, a little more closely, the objection made
to the theory of deterrence. In what way does it come into direct
conflict with a moral theory of punishment? It looks upon immorality as
mischievous, or as diminishing happiness; and upon the utilitarian view
immorality means the diminution of happiness. Now, without discussing
ultimate moral questions, I may assume that, for practical purposes,
this seems to be a sufficiently tenable position. After all, we admit,
to whatever school we belong, that crime is mischievous, and, whatever
deeper meaning may be assigned to it, may be considered in that light by
the legislator. He cannot--certainly he ought not to--forbid actions
which do no harm to anybody, or which nobody, at the time and place,
feels to be injurious to happiness. Even, therefore, if utilitarianism
be unsatisfactory as an ultimate theory, it may represent adequately the
point of view of the practical legislator. He tries to suppress violence
and fraud because, as a fact, they cause what their victims unanimously
agree to be painful consequences; and he need not look any further for a
reason. People, it is said, have very different standards of pleasure.
Still, we all dislike having our throats cut or our pockets picked; and
that fact supplies a sufficient ground upon which to base the whole
criminal law. When we go a little further, a point of divergence may be
noticed, a short consideration of which may help to clear the case. Let
us assume the legitimate end of all punishment to be deterrence. It will
follow, that we must annex as a consequence to crimes an adequate
counterpoise, and a counterpoise not more than adequate to the
criminal's motives. The fine to be paid must be just sufficient to
prevent the transgression. Now, it has been urged, this necessarily
implies a conflict with morality. The degree of moral guilt implied in a
given crime varies inversely as the temptation. The greater the
inducement to the offence, the less the wickedness shown in committing
the offence. A man may have enough virtue to refrain from a gratuitous
injustice, although he has not virtue enough to resist a large bribe, or
the threats of a man in power. But, if the legislator is to provide
simply a counterpoise, he will have to follow the opposite rule. The
greater the temptation, the greater must be the force of the motive
which must be added to counterbalance the temptation. If there be a
crime by which a man might make a million of money, you must, if you
would prevent it, hold out the prospect of such pains as would, in his
estimation, be cheaply avoided at the sacrifice of a million; or, making
allowance for the uncertainty of detection, by the sacrifice of more
than a million. But if, by the same crime, he only got a five-pound
note, the prospect of paying a hundred pounds in case of detection might
be a sufficient preservative of his honesty. Yet, the man who is tempted
by the million gives less proof of dishonesty than the man who commits
the same crime for a paltry five pounds. Therefore the punishment must
be increased, as the wickedness is less.
I must first set aside one ambiguity which perplexes this argument. When
we speak of a temptation as varying, we may mean one of two very
different things. To say that I am more "tempted" than you to commit a
given crime, may mean that the gain expected by me is itself greater;
or, it may mean that I am more predisposed to the crime. I may be more
tempted, let us say, to poison my uncle than you are to poison yours.
That may mean that my uncle is a rich old sinner and I am his heir,
whereas your uncle is a poor saint and you will get nothing by his
death. Or it may mean that I am more tempted because, our uncles being
alike, I am spiteful, and you affectionate, by nature. In the first
case, to say that I am under the stronger temptation would, perhaps,
tend to alleviate the gravity of my crime; in the second, it would
simply be another way of saying that I was the greater brute. In both
cases, of course, it is true that the greater temptation would require
the greater counterpoise. In one case, this only means that the worse
the man, the stronger the restraints which he requires; and, if you
could make different laws for bad men and good, it would follow that the
bad would require the heaviest penalties. But this does not conflict
with the moral view. It is no excuse for a murderer to say, "I am so
bloodthirsty that I really could not help murdering". No contradiction
to morality arises from punishing his crime more severely. In the other
case alone,--the case in which we made distinctions founded upon the
difference of surrounding circumstances,--it is true that we should,
from the point of view of simple deterrence, require heavier penalties
where the temptations were greater, and, therefore, the intrinsic
malevolence proved to exist less.
For most purposes, this argument seems to have very little practical
application. The law is made for people in general; we cannot have one
law for bad men and another for good; partly because good and bad people
do not carry about tangible marks of their quality written upon their
faces. No doubt, indeed, the atrocity of a crime is recognised, if not
by the general law, by the nature of the sentence. An assault may show
unnatural ferocity or merely a rather excessive warmth of temper; and,
though the offence may be forbidden under the same clause of the
criminal law, the judge may be empowered to give sentences of varying
severity, varying more or less according to the moral depravity implied.
So far, the worst offences (in a moral sense) get the heaviest
punishment; and the deterring influence is rightly exerted by
proportioning the penalty to the temptation, that is, to the
predisposition to crime. The other case, again, requires some
qualification. It is not true, as an absolute proposition, that the
criminality is always, or generally, diminished, in proportion to the
greatness of the temptation; for we must remember that both the
temptation and the crime will generally be greater in proportion to the
amount of mischief inflicted. It is more tempting, no doubt, to
appropriate a thousand pounds than a shilling; but we cannot infer that
the man who takes the larger sum is, therefore, less wicked; that he has
a conscience which would have kept him honest under the smaller
temptation, and has only yielded to the greater. Compare, for example,
the case of the petty pilferer who appropriates my watch, with the case
of the man of business who appropriates securities worth many thousand
pounds and ruins widows and orphans by the dozen. We should all agree, I
imagine, that the perpetrator of the more gigantic fraud would require
the stronger deterring motive to be kept straight. He is playing for
heavy stakes, and we cannot hold out too strong a threat of infamy and
suffering, if our aim is simply to prevent the crime. But neither, if we
consider him from the purely moral point of view, would it be fair to
argue that he was a better man than the pickpocket, because the plunder
which tempted him was greater. The opposite, I fancy, would be true. He
shows a callousness to human suffering, and an amount of deliberate
hypocrisy and treachery which proves him to be not only the more
dangerous, but the more thoroughly corrupt of the two. The two ends of
providing a sufficient counterpoise and of punishing the worst men most
severely, would, therefore, coincide in this case also; and the argument
that the greater temptation implies less wickedness is plainly
inapplicable.
Without going further into this, which may briefly indicate some of the
perplexities involved, I may mention certain cases in which there seems
to be a real divergence of the two principles. There are cases in which
the temptation may be fairly held to lessen guilt, and in which
punishment has, notwithstanding, been made severer in consequence. The
criminal law of the last century, for example, imposed a penalty of
death upon persons who stole certain kinds of property left in specially
exposed positions. The ease of taking it would very possibly tempt to
theft men who would elsewhere be honest; and it was sought to compensate
for the strength of the temptation by more savage punishment of those
who yielded to it. Or, again, there are certain problems of a similar
kind connected with political offences. A man who gets up a rebellion
from sincere political motives is generally far better morally than the
man who gets up a rebellion for the sake, say, of simple plunder. Ought
the motive to be allowed as an extenuation of the offence? It ought, it
may be said, from a moral point of view; but, from the point of view of
simple deterrence, we might rather consider that the patriotic rebel is
the more dangerous person of the two, and, therefore, requires the
prospect of at least as heavy a punishment to keep him quiet. So, again,
it has been asked, whether it should be admitted as an excuse for a
rioter, that he has joined in violent courses under threats from the
riotous mob. This is, of course, an excuse from the moralist's point of
view; the man is only attacking the police in order to save his own
house from being burnt, not from a disorderly or disaffected spirit. But
it is replied, from the deterring point of view, that, if such an excuse
be allowed, you are ceasing to threaten at the precise moment when the
threats are most required. If the law is not to press from one side,
all the pressure will come from the other, and every argument will be in
favour of joining the side of disorder. Hence, it is argued, we ought to
proportion the punishment, not to the offence, but to the temptation.