principles appears to me to be possible; and, further, that cases may be
put in which it might be necessary to deter, at all hazards, even to the
neglect of moral considerations. A general who is defending a town must
sometimes burn the houses of innocent people, without stopping to
consider whether they can ever be compensated; and I think that there
may be analogous cases even in regard to law, where the consideration of
the absolute necessity of putting down mischievous conduct may override
the normal moral considerations. But the general answer is, I think,
different, and may help to clear the principle. The law to which I have
referred, for the protection of exposed property, obviously suggests one
remark. The true remedy for the evil would have been not to increase the
penalty, but to increase the protection. You ought to have provided more
watchmen, or to have forbidden owners to put temptation in the way of
their neighbours, and not to have tried to make the hangman do the work
of the policeman. So our ancestors erred when they protected their
fields, not by putting up fences, but by setting mantraps to mutilate
occasional trespassers. In that, as in other cases, the mistake is to
confuse between the deterring influence of punishment and the preventive
influence of protective measures. Arguments, questionable when used on
behalf of punishment considered as deterring, are perfectly applicable
to the preventive measures. It is obviously right that such measures
should be proportioned to the temptation. When a starving man steals a
loaf, he is not so bad as a man who steals when he is not starving. We
should, therefore, think it morally wrong to punish him as severely.
But, if we thought that he ought not to have the loaf, we should take
stronger precautions in proportion to the probable temptation. If, for
example, we were sending supplies to relieve a starving district, it
would be clearly right to send such a force with them as might prevent
their appropriation by the strongest, or the first comers. But, at the
same time, we should also think it right to save the men from
temptation, by providing as much as possible against the danger of
starvation. So, again, it would be monstrous to punish a poor man more
severely than a duke, for stealing a watch; but, as a matter of
prudence, I should take more precautions if I were dining in a poor
public-house, than if I were dining in a ducal palace.
This suggests the true application of another doctrine, about the
responsibility of society. Society, it is sometimes said, has no right
to punish, because it ought to have suppressed the causes of crime. This
doctrine is often stated very illogically, and would sanction a great
deal of false sentimentalism. If society includes many corrupt and
dangerous elements, that is no reason at all for not suppressing them by
all available means. But, no doubt, it is a very good and sufficient
reason for trying, as far as possible, to remove the cause as well as
the effects; for getting rid of the temptations to crime, and training
people so as to make them less disposed to crime, instead of simply
punishing more severely those who have yielded to temptation and given
play to instincts which have not been properly disciplined. This applies
conspicuously to the case of the political criminal. It is generally
essential to the welfare of a nation, that order should be preserved by
a settled government. It is the duty of every government, not only to
crush resistance, but to take such precautions as will make resistance
hopeless. But a correlative duty is suggested when a rebellion actually
occurs, and especially a rebellion which excites the sympathy of
otherwise moral people. Such a case, that is, affords the strongest
presumption that there are real grievances to be redressed, and that the
rebel should not be confounded with the vulgar criminal. It may be, and
often is, quite necessary to shoot him down, so long as he is actively
attacking authority; but, when he is disarmed, he cannot be regarded
simply as a thief or murderer, but as a man who has given a useful,
though a disagreeable, hint that the times are out of joint.
I have gone so far into these questions--which might lead to a great
many other problems of legal casuistry--with the desire of bringing out
one essential part of the question. The difficulties which have arisen
point, I think, to the impossibility of treating the problem
exclusively, from a simple consideration of the deterring influence of
punishment. That, however, remains an essential element. If the sole
reason for punishing a sheep-stealer be not the prevention of
sheep-stealing, that is, at least, a very excellent reason as far as it
goes. But it seems to me an insufficient reason from the moral point of
view, and, in particular, to fail in assigning a sufficiently distinct
ground for determining the desirable degree of punishment. The principle
was advocated as limiting the severity of the old laws; but it is not
quite easy to define the limit suggested. There is a necessary
clumsiness about the method. A punishment only becomes operative in the
cases in which the threat has failed to deter. The fact that a man has
committed a crime demonstrates the inadequacy of the system in his case;
we have not given him a sufficient motive for abstaining. When Bentham
says, that if a fine of five shillings would prevent a murder, you ought
not to fine the murderer seven and sixpence, he says what is, in a
sense, obviously true. If I could prevent a murder, or, indeed, achieve
any other desirable object, for a given sum, why should I throw away
another penny? But the fine is not inflicted till somebody has committed
a murder, and, in that case, the threat of fining has obviously failed.
The question arises, therefore, how far am I to go? Am I to go on
raising the tariff till murder becomes altogether obsolete? But we have
already got as far as capital punishment, without achieving that result.
And, if we consider the case upon this method, we begin to find a
difficulty in the method of calculation. We are to compare the pain
inflicted upon the criminal with the pain saved to the victim. But the
greater the pain inflicted, the smaller, according to the assumption
made, will be the number of criminals, and the greater the number of
victims saved. If we could adopt the Draconic system, and be sure of
punishing every crime with death, crime ought to disappear; for hardly
anybody would break the law if he were quite certain of the gallows.
But, in that case, the pain, both of the criminal and the victim, would
disappear, for there would be no one in either class. The result,
therefore, would be a pure gain: no crime and no punishment. Against
this practical conclusion, indeed, Bentham was one of the first to
protest; and he uses one very sound argument. Punish all crime equally,
he says, and you put a premium on the worst crimes. If both robber and
murderer are to be hanged, the robber will have a good reason for
destroying evidence, by adding the murder to the plunder of his victims.
But, though the argument is very much to the purpose, it seems to make
our calculations rather difficult. We cannot look simply to the
deterring influence of a given punishment, but have to consider its
place in the general tariff, and its influence in inducing people to
prefer one variety of crime to another. And if we try to find our way
out of this difficulty, we shall have, I think, to find that the mode of
reasoning requires some modification.
The theory on which the calculation goes may, perhaps, be represented
thus: It is supposed that by hanging a murderer, you prevent, say, ten
murders which would otherwise happen. The suffering saved to the ten
victims is greater than the actual suffering of the single criminal.
Therefore, the infliction of the penalty gives a balance on the side of
happiness. The argument seems to me to be sound as far as it goes, and,
in some cases, it would, I think, be sufficient. If, for example, it
were proved that the use of a certain remedy, such as inoculation,
caused a certain number of deaths, while, on the other hand, it
prevented ten times as many, we should consider that a good case had
been made out for its adoption. And, similarly, if we attended simply to
the number of executions and to the number of crimes, and could make the
necessary arithmetical comparison, we should be able to estimate the
balance of good or evil in terms of pain and pleasure. But this mode of
considering the case is obviously inadequate; and, indeed, Bentham
(though I cannot now go into his teaching) feels and makes allowance for
its inadequacy. For, to say nothing else, the mere deterrence of a
certain number of crimes is an entirely insufficient measure of the
effect of the law. The one obvious remark is that, by suppressing
violence, you not only save a certain number of lives, but you secure an
essential condition of all civilised life. I came here to-night without
a revolver in my pocket; and I am not aware that I showed any particular
courage by doing so. But it would have been foolhardy to have shown the
same negligence, a few years ago, in some of the Western States of
America. If I had lived in such conditions, I should not only have taken
a revolver, but have, very possibly, thought it a duty to join a
vigilance committee, with a view to the suppression of crimes of
violence. There are still regions where the fact that a man lives in a
neighbouring village is a sufficient justification for shooting him down
as soon as he comes in sight, for the simple reason that, otherwise, he
would shoot you. So, when private war was still part of the regular
custom, there was an obstacle which had to be crushed before any
progress could be made in industrial development, which presupposes
peaceful intercourse and mutual confidence. The formation of all that is
meant by social order, the bringing about of a state of things in which
men can meet habitually without fear or precaution, counting with
complete confidence upon the absence of any hostile intention, is,
obviously, an essential condition of everything that makes life worth
living in a civilised country. The fact is too obvious to require much
illustration; but it requires notice, for it is very imperfectly
recognised when you regard murder, for example, simply as a kind of
sporadic disease, which breaks out here and there, and can be kept
within limits by killing some murderers, and so frightening other
would-be murderers. The criminal law, no doubt, includes that
consideration; but it includes infinitely more. It is a necessary
corollary of that state of social relations which alone gives a secure
base for every conceivable kind of satisfactory social relation. It
might, perhaps, serve as a sufficient defence of the old system, when,
in the absence of any settled order, the system of private vengeance, of
blood-feuds, and so forth, served to restrain the prevalence of actual
violence. But it is a totally insufficient measure of the real advantage
gained by enforcing order. We have to compare, not only the number of
murders and the number of victims which would exist in a given social
order, supposing the penalty to be inflicted or not inflicted; but to
compare two radically different social states, and to ask, whether it is
better to live in a society where peace is the almost invariable rule,
and violence the rare exception, or in one in which there is a chaos of
little societies, each of them being in constant fear of all its
neighbours. The construction of a central authority which will keep the
peace is a necessary part of the process of civilisation, and the
criminal law is involved in the process. For, of course, it follows
that, so long as anti-social elements exist within the borders of
society, and some people resort to the old methods of the knife or the
bludgeon, they must be put down; and the hangman and the jailer, clumsy
as the action may be, represent the only kind of machinery which has
hitherto been invented for the purpose.
It follows that we must understand "deterrence" in a wider sense than
we have hitherto given to it. When we speak of punishment as deterring
from crime, we must consider, not merely the effect upon the individual
of the prospect of punishment following detection, but the total effect
of a systematic adherence to the law upon the preservation of a peaceful
state of society at large. We do not simply wish to provide a sufficient
motive to decide the individual who is asking himself, shall I steal or
not steal? but to maintain an organisation under which property shall be
normally respected, and stealing become as exceptional as we can make
it. This, in turn, involves much more than a simple execution of the
criminal law; it involves the support of agencies for prevention,
education, and reformation; though it does, also, involve an inflexible
adherence to the criminal law. The law has to use rough means, and
cannot possibly affect to adhere precisely to the moral deserts of
individual cases. But it is justified by the simple ground that the only
alternative is a chaos of barbarism. If you ask, therefore, in what
sense is a criminal law just? we must confess that, in certain respects,
it is impossible that it should be strictly just; it must deal with the
found-out exclusively and with those who are found out in certain
definite cases of criminality, and it must, therefore, impose penalties
which do not precisely correspond to the degree of criminality implied.
But the relation to morality is, nevertheless, intimate. For the growth
of the social order depends upon the growth of the corresponding social
instincts; or rather, the two processes are correlative. If I love my
neighbour I shall not wish to cut his throat; and, in order that I may
love him, I must be pretty sure that he does not mean to cut mine. The
external framework provides a protection under which the primary moral
instincts can expand; and the expansion of the instincts supposes a
correlative modification of the external framework. The moral
requirement in regard to the criminal law is, therefore, essentially,
that it should be such a law as is favourable, when considered in
connection with the whole order, to the strength and development of the
existing morality. If the criminal asks, How do you justify yourself for
punishing me? the reply must be, Because the inflexible administration
of the law is an essential precondition of the whole system, under which
alone progress is possible. A society in which peace and order are
preserved is superior, in morals as in other respects, to a society in
which peace and order are made impossible by violence; and the
suppression by punishment of offenders is involved in the system. The
advantage of belonging to such a society is not to be measured by
counting up the working of individual cases; but by the whole
characteristics of the social state, taken as a whole, and including, as
one essential part, the administration of criminal law in such a way as
to be in conformity with the conditions of healthy social development.
The difficulty, I think, though I can only indicate the argument
briefly, results from a common illusion, which is illustrated by the
once famous social contract theory. You suppose a number of independent
individuals, agreeing to join and expecting to receive a precise
equivalent for every sacrifice that they make in consequence. The reply
is, that the individual is the product of the society, and it is a mere
fiction to consider him as possessing any antecedent rights whatever.
His rights are to be deduced from, not to supply the premisses for
deducing, the social order. The only considerations which are relevant
are those which affect the welfare of the social organism, taken as a
whole; and we must regard them as determined, before we come to the
distribution of benefits and burdens among its constituent facts.
Otherwise, we should be falling into the same fallacy as if we argued
about the health of separate bodily organs, legs, and arms, and
stomachs, as though they were independent things, fastened together to
make a single machine. Since the leg implies the stomach, any
consideration of the leg's separate rights would be absurd. So the
individual member of a political society cannot be regarded as though he
had existed outside society somewhere, and was entitled to a precise
equivalent for the sacrifice of his independence. The doctrine involves
impossible considerations. I have to contribute to certain sanitary
regulations, though I may be stronger or weaker than my neighbours, and
therefore less or more in need of them. Or, I have to pay a school-rate,
whether I have a dozen children or none at all. Do those facts give me a
right to complain if I am taxed equally with my neighbours? If so, every
benefit which I receive from society must be set down as a separate item
in an account to be balanced by itself. Obviously, the advantage which I
receive in such cases is the whole advantage received from living in a
healthy place or among educated people; and it is essentially impossible
to cut that up into a number of different bits of happiness conferred in
return for separate payments on account. If I use the contract formula,
I must interpret it to mean that amenability to various regulations,
including the criminal law, is part of the whole bargain, which would
have been made, if it had ever been real, when I decided, if I ever had
decided, to join the society. The instinct for punishing criminals
guilty of violence is one of the fundamental instincts of civilisation,
and we must accept it just as we accept any other fundamental instinct.
The question of justice, however, is not a whit the less essential
because it presupposes this social characteristic instead of supplying
the primary axioms from which it is to be deduced. It is undoubtedly of
the highest importance that every difference in our method of treating
different classes should have its sufficient reason, to be assigned as
clearly as possible. The preservation of the peace is essential; but
that does not settle the methods by which it is to be preserved.
On what ground, then, are we to deal with the problem of justice as
regards different classes of crime? If the calculation of pain and
pleasure, as already stated, seems to be unsatisfactory, what is the
right principle of proportioning punishment to offence? I have noticed
one argument which Bentham applied, and, as I think, with very good
reason. To punish crimes equally, he said, is virtually to put a premium
upon the worst. The "in for a penny in for a pound" maxim becomes at
once applicable. Moreover, as every one now admits, the old brutal
system is condemned by experience. To punish a great number of offences
with death led to a mixture of excessive brutality with excessive
uncertainty. The cruel punishment of some criminals was balanced by the
complete escape of others. But this practical failure clearly resulted,
in great measure, from an obscure sense of justice. It was grossly
unjust, it seemed, to hang a man for stealing a loaf, when you could
only hang another for the brutal murder of his wife. The penalty in the
first case, was, it was felt, altogether out of proportion to the
offence. This instinctive sentiment was, as I think we all feel,
substantially right. In any case, it would have to be taken into account
by the legislator, for the obvious reason that punishments which outrun
public opinion, tend to make martyrs of criminals. They are either not
inflicted, or they set the sympathy of the people on the side of the
offender. But to say this, is not to prove the sentiment to be just,
only to take account of its existence. And the question, therefore,
remains, how it is to be logically justified, for it may seem to imply
the theory to which I have objected--the hypothesis of a sort of debtor
and creditor account--of the old "eye for an eye" doctrine, which, as I
have argued, involves a misconception of the true doctrine. My reply
would be, in general terms, that the doctrine requires restatement, and,
if properly stated, will not lose but acquire new forces.