to cause, pain in return for inflicted pain. For ages it was looked upon as a matter of course that if a person had committed an offence he should have to suffer for it. This is still the notion of the multitude, as also of a host of theorisers, who, by calling punishment an expiation, or a reparation, or a restoration of the disturbed equilibrium of justice, only endeavour to give a philosophical sanction to a very simple fact, the true nature of which they too often have failed to grasp. The infliction of pain, however, is not an act which the moral consciousness regards with indifference, even in the case of a criminal; and to many enlightened minds with keen sympathy for human suffering, it has appeared both unreasonable and cruel that the State should wilfully torment him to no purpose. But whilst retributive punishment has been condemned, punishment itself has been defended; it is only looked upon in a different light, not as an end by itself, but as a means of attaining an end. It is to be inflicted, not because wrong has been done, but in order that wrong be not done. Its object is held to be, either to deter from crime, or to reform the criminal, or, by means of elimination or seclusion, to make it physically impossible for him to commit fresh crimes.

These views were expressed already in Greek and Roman antiquity.1 According to Plato, a reasonable man punishes for the sake of deterring from wickedness, or with a view to correcting the offender.2 Aristotle looks upon punishment as a moral medicine.3 Seneca maintains that the law, in punishing wrong, aims at three ends: "either that it may correct him whom it punishes, or that his punishment may render other men better, or that, by bad men being put out of the way, the rest may live without fear." 4 In modern times all these theories have had, and still have, their numerous adherents. According to Hugo Grotius, "men are so bound together by their common

1 Cf. Laistner, Das Recht in der Strafe, p. 9 sqq.; Thonissen, Le droit pénal de la république Athénienne, p. 418 sqq.

2 Plato, Protagoras, p. 324. Idem, Politicus, p. 293. Idem, Gorgias, p.

479. Idem, Leges, ix. 854; xi. 934: xii. 944.

3 Aristotle, Ethica Nicomachea, ii.

3. 4.

4 Seneca, De clementia, i. 22. Cf. Idem, De ira, i. 19.

4

1

nature, that they ought not to do each other harm, except for the sake of some good to be attained ; hence man is not rightly punished by man merely for the sake of punishing"; advantage alone makes punishment right—" either the advantage of the offender, or of him who suffers by the offence, or of persons in general." For a long time the view taken by Hobbes, that "the aym of Punishment is not a revenge, but terrour,' remained the leading doctrine on the subject, among philosophers, as well as legislators. It was shared by Montesquieu, Beccaria, and Filangieri,5 by Anselm von Feuerbach 6 and Schopenhauer,7 and, in the main, by Bentham.8 During the nineteenth century the principle of determent was largely superseded by the principle of reformation; whilst certain contemporary criminologists-like some previous ones—are of opinion that punishment should aim to repress crime by an "absolute " or "relative elimination" of the criminal, that is, in extreme cases by killing him, but generally by incarcerating him in a criminal lunatic asylum, or by banishing him for ever or for a certain period, or by interdicting him from a particular neighbourhood.10

The advocates of these various theories are unanimous in condemning retributive punishment as wrong. Without the grounds of social defence, says M. Guyau, “the punishment would be as blameworthy as the crime, and . . . the lawgivers and the judges, by deliberately condemning the guilty to punishment, would become their fellows." For my own part I believe, on the other hand, that those who would venture to carry out all the consequences to which the theories of social defence or of reformation might lead, would be regarded even as more criminal than those they punished, not only by the

opponents, but probably by the very supporters of the theories in question. A brief statement of some of those consequences will, I hope, suffice to prove that punishment can hardly be guided exclusively by utilitarian considerations, but requires the sanction of the retributive emotion of moral disapproval.

The principle of repressing crime by eliminating the criminal may at once be put aside, because it has no reference to the punishment of criminals, although it contains a suggestion-and a most excellent one indeed-as to the proper mode of treating them. Their exclusion from the company of their fellow-men-not to speak of their elimination by death-certainly entails suffering, but, according to the principle with which we are dealing, this suffering is not intended. On the other hand, punishment, in the ordinary sense of the word, always involves an express intention to inflict pain, whatever be the object for which pain is inflicted. We do not punish an ill-natured dog when we tie him up so as to prevent him from doing harm, nor do we punish a lunatic by confining him in a madhouse.

According to the principle of determent, the infliction of suffering in consequence of an offence is justified as a means of increasing public safety. The offender is sacrificed for the common weal. But why the offender only? It is quite probable that a more effective way of deterring from crime would be to punish his children as well; and if the notion of justice derived all its import from the result achieved by the punishment, there would be nothing unjust in doing so. The only objection which, from this point of view, might ever be raised against the practice of visiting the wrongs of the fathers upon the children, is that it is needlessly severe; the innocence of the children could count for nothing. Nor do I see why the law should not allow our own judges now and then to follow the example of their Egyptian colleague who in an intricate lawsuit caused a person avowedly innocent to be bastinadoed with the hope that whoever was the real

culprit might be induced to confess out of compassion.1 Moreover, if the object of punishment is merely preventive, the heaviest punishment should be threatened where the strongest motive is needed to restrain. Consequently, an injury committed under great temptation, or in a passion, should be punished with particular severity ; whereas a crime like parricide might be treated with more indulgence than other kinds of homicide, owing to the restraining influence of filial affection. Could the moral consciousness approve of this?

Again, if punishment were to be regulated by the principle of reforming the criminal, the result would in some cases be very astonishing. There is no more incorrigible set of offenders than habitual vagrants and drunkards, whereas experience has shown that the most easily reformed of all offenders is often some person who has committed a serious crime. According to the reformation theory, the latter should soon be set free, whilst the petty offender might have to be shut up for all his life. Nay more, if the criminal proves absolutely incorrigible, and not the slightest hope of his reformation is left, there would no longer be any reason for punishing him at all. The reformationist may also be asked why he does not try some more humane method of improving people's characters than by the infliction of suffering.

It may seem strange that theories which are open to such objections should have been able to attract so many intelligent partisans. These theories must at least possess a certain plausibility. If punishment on the one hand springs from moral indignation, and on the other hand is frequently interpreted as a means either of deterring from crime or of reforming the criminal, there must obviously be some connection between these ends and the retributive aim of moral resentment. There must be certain facts. which, to some extent, fill up the gap between the theory of retribution and the other theories of punishment.

1 Burckhardt, Arabic Proverbs, p.

103 sq.

Cf. Morrison, Crime and its Causes,

p. 203; Durkheim, Division du travail social, p. 94.

The doctrine of determent regards punishment as a means of preventing crime. A crime always involves the infliction of pain; and the one thing which men try to prevent for its own sake is pain. The one thing which arouses resentment is likewise pain. There must consequently be a general coincidence between the acts which people resent and the acts which the law would punish if it were framed on the principle of determent. But the resemblance between the desire to deter and resentment is greater still. Resentment is not only aroused by pain, but is a hostile attitude towards its cause, and its intrinsic object is to remove this cause, that is, to prevent pain. An act of moral resentment is therefore apt to resemble a punishment inflicted with a view to deterring from crime, provided that the punishment is directed against the cause of crime-the criminal himself and is not unduly

severe.

The doctrine of reformation aims at the removal of a criminal disposition of mind by improving the offender. Moral resentment likewise aims at the removal of a volitional cause of pain, by bringing about repentance in the offender. That repentance ought to be followed by forgiveness, partial or total, is a widely recognised moral claim.

According to the Chinese Penal Code, whoever, having committed an injury which can be repaired by restitution or compensation, surrenders himself voluntarily, and acknowledges his guilt to a magistrate, before it is otherwise discovered, shall be freely pardoned, though all claims upon his property shall be duly liquidated.1 In Madagascar, according to a law made in 1828, all the fines shall be reduced one-half, according to the nature of the fines, if the persons guilty accuse themselves." 2 According to Zoroastrianism, one element of atonement consists in repentance, as manifested by avowal of the guilt and by the recital of a formula, the Patet. It is said in the Laws of Manu:"In proportion as a man who has done wrong, himself

1 Ta Tsing Leu Lee, sec. xxv. p. 27 sq. 2 Ellis, History of Madagascar, i.

3 Darmesteter, in Sacred Books of the East, iv. p. lxxxvi.