Chapter II: Part 2

Now, remembering this, we see the difficulty of pronouncing upon the nature of the Greek organisation. Perhaps the commonest of all remarks upon Greek work is the symmetry and harmony, the "all-roundness," if I may say so, of the development implied. Poetry and philosophy, art and science seem to be so blended in their work that we cannot tell which faculty is predominant. What, then, is the inequality of development which is essential to Mr. Kidd's argument? They were wanting, he seems to answer, in "altruism". What does this mean? The astonishing power of the Greeks was certainly as conspicuous in poetry and art as in anything else; and that power surely implies development of the emotional as well as of the intellectual nature. By a defect of "altruism," I take him to mean that these emotions did not flow along the channel of general philanthropy. They were wanting then, as I should put it, rather in cosmopolitanism than in altruism. If altruism means care for something outside yourself, where could we find better examples of altruism than at Thermopylae or Marathon? Was it not due to Greek altruism in this form (some historians would say) that Mr. Kidd is not now living under the rule of a Persian Satrap? The altruism, no doubt, meant an intense and patriotic devotion to a small State, or an interest in Greek as against barbarian, and was compatible with much brutality to individuals and acquiescence in slavery. But this does not indicate an absence of the emotions themselves, but simply their confinement within narrow limits, by the conditions under which they were placed. Slavery, for example, is abominable; but I see no reason for supposing that the slave-holders in America were worse men by innate constitution than their opponents. They were corrupted by their position.

This, in any case, leads to another problem. Were the Greeks more or less altruistic than other races? If you could show that altruistic races had survived while the Greeks perished, there might be a presumption that the want of altruism was the cause of their decay. But this again does not seem to be the case. Hardly one of the ancient races, indeed, has survived unvaried. The Romans were at least as brutal as the Greeks, and, one would say, as far from "altruistic". Yet they overpowered the Greeks. How, then, can it be inferred that the Greeks perished because of defective altruism? The struggle for existence was between races equally defective to all appearance in that quality; and it must be a sophistry to signalise its absence in one as the cause of its disappearance. There is, indeed, one race to which every one would turn as the most prominent example of survival, namely, the Jews. The Jews have enormous merits and great intellectual endowments; but can anybody say that they were altruistic in the sense of being cosmopolitan? Are they not conspicuous, beyond any race, for the narrower forms of altruism, rejection of a cosmopolitan creed, even when it arose among them, and exclusive devotion to the welfare of their own people? I think that it would be perfectly easy to argue that the Greeks died out just because of their cosmopolitan and therefore dispersive tendencies, and that the Jews have held out from a judicious adherence to narrower views of self-preservation. But personally I regard all such "arguments" as really belonging to the extra-scientific regions of rhetorical illustration.

This suggests one other point which requires consideration. Mr. Kidd regards it as proved that progress has been due to the Christian religion, which revealed the new moral doctrine. The Christian religion introduced, it seems, that belief in the supernatural which is essential to altruism. It seems to me to be inconsistent with his own principles, that he should attribute progress to what is essentially, on his own showing, an intellectual change: that is, to a change in belief and even to a change which, in comparison with the old polytheism, was distinctly sceptical and rationalistic. But one point is clear. The introduction of Christianity may be interpreted more consistently in a totally different way. The Greek who became a Christian was not provided with a new set of emotions, but his emotions were directed into new channels. He ceased to care for Athens, because Athens had ceased to be an independent State; he began to be cosmopolitan when he was forced to be part of a cosmopolitan empire. The important distinction was no longer the distinction between Athenian and Spartan, but between the different classes in the world-wide system. That is to say, the "altruism" which came in with Christianity was not the product of a new dogma suddenly dropped from heaven; but of the new social condition, which made it inevitable that the forces which previously stimulated a local patriotism should now exert themselves nearer a cosmopolitan organisation. This is, of course, a commonplace; but, for that reason, it should not be simply ignored. It suggests one other consequence of Mr. Kidd's theory. It is proved, he says, that the progress of the Western world is due to Christianity. His "proof," as I suppose, is that the States which have sprung out of the old Empire of the West have been Christian and have progressed. How, then, about the Empire of the East? If the great Kingdoms of the West are the unique example of progress, what is the unique example of decay? Surely, the regions where Christian dogmatic theology was defended by Athanasius and Chrysostom. If you wish to point out a region where the race has actually gone backwards, you would refer to the Turkish Empire. Why, if Christianity was the sole cause of progress in one quarter, was it comparable with complete decay in the other? Does the Eastern theory about the _filioque_ explain it? Or were the Mohammedans more "altruistic" than the Christians? Or is it that it is absurd, especially upon Mr. Kidd's own doctrine, to assign the dogmatic creed of a race as the sole cause of its character and its success in the struggle for existence?

I do not lay any stress upon the argument, except in a negative sense. I do not see, that is, how Mr. Kidd can make his theory fit the facts. But I infer one other remark. It is impossible to divine the causes of the rise and fall of empires, the success or decay of a race, from any of these sweeping generalisations about ill-defined qualities. If we ask why the Greeks died out, we should have to take into account another and a totally different set of considerations: what I may call the accidents of their position. We should have to consider all the arguments by which historians have tried to explain the events; the facts of physical geography, for example, which account for the division into small separate States; the relations of the Greeks to the Eastern races on the one side, and to the Romans on the other; and, briefly, to all the material conditions, those different from the intrinsic character of the race, by which the whole course of political development and of the conflict between different peoples, is moulded and directed into particular courses. I do not say, for I cannot guess, what would be the result of such an inquiry; but I think it just as possible that it would lead us to wonder at the persistence of the Greek States for so long a period, as that it would lead us to wonder at their disappearance. Our conclusion might be, that nothing but the astonishing intellectual powers of the Greeks enabled them to play so great a part in the world's history, not that their intellectual superiority was the cause of their decay.

I consider, therefore, that the alleged fact is stated so vaguely that we have no distinct problem set before us; that we don't know what is the process to be explained; that the suggested intellectual superiority is doubtful, at least in degree: that the excess of intellectual above other development, which the superiority is supposed to have created, is not proved, and, still less, that such excess was more conspicuous among the Greeks than among their rivals; that, even if it existed, it is not proved that it would have produced the effect ascribed to it; and, finally, that the other causes which undoubtedly operated, are simply overlooked. I confess, therefore, that the whole argument seems to me to illustrate the danger of rashly applying certain scientific formulae,--themselves, perhaps, still doubtful,--to new and exceedingly complex questions. If Darwin had reasoned in this light-hearted way, no one would have been moved by his conclusions.

But I must still add, what brings me back to my point, that even if the proposition were proved, it would not establish the conclusion. It may be, that races of abnormal intellectual development are at a disadvantage in the struggle for existence. That does not prove that "progress is not primarily intellectual". Buckle, who argued that progress was due to intellectual causes exclusively, always assumed that human nature was constant, or that the faculties did not change. Though I do not accept his view, any more than Mr. Kidd's, I do not see that he was inconsistent. I take the most obvious case to illustrate the point. No one can doubt that one of the most important influences in modern social evolution was the set of mechanical contrivances devised by Arkwright and Watt and their contemporaries. Without them, the enormous development of great cities, of a population of artisans, and of the bringing together of all quarters of the globe, would have been impossible. The inventions, again, were due to no moral purpose in the inventors. They wanted to make money, and represented what is called (I do not say justly) the most egoistic impulse of modern times. One condition, then, of the great social change was essentially intellectual. This does not mean that Watt was a cleverer man than Archimedes. I don't know whether he was or not; but it does mean that the mechanical sciences had improved; and, consequently, that Watt, though not possessed of intrinsically greater powers, was, in this direction, a more intellectual person. He had inherited the truths discovered by Archimedes and many generations of successors. That science should be efficient, it is not required that men should be greater geniuses than their predecessors; but simply that they should know more of the facts and laws of nature, and have, so to speak, better intellectual tools. Mr. Kidd thinks that the inability of a savage to count three does not prove him to be stupid, only to be without certain rules discovered by the higher races. Yet, he will not deny that by the help of arithmetic we can work out sums inconceivable to the savage; and that our power affects our whole social position. Does not the existence of a currency affect mankind; and if we could not count, could we make use of it?

I therefore hold that in many cases the causes of progress are "primarily intellectual". The mechanical discoveries of which I have spoken have revolutionised the whole world. I agree, indeed, fully, that the causes are not exclusively intellectual. A certain social condition--the existence, to say nothing more, of peace and order over wide regions--was as necessary as the intellectual condition to the development of commerce and manufactures. This, of course, implies the growth of corresponding sentiments, including, no doubt, what Mr. Kidd means by altruism. But the change may, and, I fancy, generally does, originate in intellectual movements. The new ideas shake the world. Reason, says Mr. Kidd, is the great disintegrating and egoistic force. I should say that reasoning is essentially altruistic: my discoveries are mentally discoveries for you; I cannot keep a truth for my private consumption, as I can keep a material product. But it is true, to use eulogistic instead of dyslogistic language, that reason is the great force of movement, and breaks up the old social conditions, not only by getting rid of the ultra-rational, but by spreading the power of the rational; and therefore it inevitably brings about a state of things in which the old moral impulses have to run in new channels; a narrow patriotism, to widen into a regard for the interests of other races; and the class distinctions which repose upon no reasonable ground, to disappear in favour of a wider humanity. When we are arguing about an organism, it is surely a mistake to fix our minds upon one aspect of the problem: to deny with Buckle the moral evolution, and with Mr. Kidd to disparage the intellectual evolution.

Mr. Kidd's doctrine appears to me, though, of course, not to him, to be eminently discouraging. If he worked it out logically, his argument, I think, would come to this: that the progress of mankind has resulted from the accidental, that is, inexplicable, appearance of a quality called altruism, which gave to those who possessed it an advantage in the struggle for existence. It would be far more consistent to say that the religious dogma was determined by this new element, than that it was the cause. Altruism, again, was only produced in effect on this hypothesis by the slow results of a process necessarily lasting through many generations; and our only hope must be in a slow organic change of the primary characteristics of mankind. Now, it is, of course, true that those characteristics, whatever they may be, impose definite limits upon our progress. The raw material limits the product; and the new-born baby is the raw material of society, as wool is of cloth: you cannot convert it into tissue of gold. So much is undeniable. We, it is said, have been developed out of an arboreal animal, and I have sometimes regretted that we were not developed out of a flying animal. The course of civilisation would have been very different if we had not been forced to come into contact by crawling and swimming, instead of the much freer methods of aerial travelling. However, as things were, the choice was apparently between wings and hands; and if we could not have both, perhaps hands were preferable, and may in time lead to flying machines. The speculation, it may be, borders upon the fanciful. I mention it only by way of illustrating the unevitable conditions imposed upon us by "heredity". We have to be content with walking instead of flying; and similarly we have to be content with having only the five senses of our forefathers, and the various old-fashioned apparatuses for eating, drinking, digesting, and so forth, which they unconsciously elaborated. No material change can possibly be made in this system within any period to which we can look forward. To regret these limitations is just as idle as to regret that we cannot fly, or that we cannot extend our voyages to the moon. They are part of the primary data of the problem with which we have to deal; and to regret that that problem was not differently contrived is to propose to set about reconstructing the universe. But when we go on to ask how far this limits any possibilities of achieving really desirable, because distinctly conceivable results, I say that we have ample room for hopes large enough to animate our loftiest desires. We inherit, it is true, certain faculties which scarcely alter, or do not perceptibly alter, for the better. We do not see or smell or hear better than the savage, and in some of these faculties we are surpassed by the dog. We inherit also certain intellectual powers, and, if they improve, the improvement is so slow as to be perceptible only after many generations. But then this intellect carries with it another power,--the power of inheriting thoughts, beliefs, methods of reasoning and rules of conduct. And, therefore, to the organic evolution is added the social evolution, which enables us to accumulate our vast spiritual inheritance. The inheritance is everything, or almost everything, that makes the distinctions between the civilised races of to-day and the wandering savages who roamed the fens and the forests which were supplanted by fields and towns. And this, I think, makes room enough for all reasonable aspirations, though it certainly does not open any prospect that we shall ever become gods or angels.

Thus, for example, we look with sorrow, sometimes with something like despair, upon the masses of the criminal or degraded population which grovels at the base of modern society. If we were bound to say, the crime and the stupidity are the necessary expression of the shape of the skull and the organisation of the brain; if we had therefore to infer that the only possible remedy is by so modifying the struggle for existence that the inferior forms may be killed off and a better breed of humanity take the place of the present; we should certainly feel that we were confined within very narrow limits. I do not for a moment say, that such considerations may not point to important practical conclusions. I should be very glad to hear of any practical suggestions for so applying these doctrines as to increase the probability that the next generation may be stronger, healthier, and more intelligent than the present. But I also assert that the most obvious facts also show that there are enormous possibilities of progress without supposing any such organic transformation. If all that makes the difference between the England of to-day and the England of two or three centuries back is the presence of the social factor, not of the organic change, it shows in the most striking way the vast educability of mankind, even without any ultimate change of human nature. We must all, I think, have been impressed lately by one of the most singular phenomena which have ever taken place in history. We have ourselves seen the transformation of the Japanese--whom we so recently regarded as semi-barbarians--acquire almost at a bound all the arts of Western civilisation, and able not only to use with singular effect that most complex and delicate piece of machinery which forms a modern warship, but to adopt systems of military organisation and the strategy of a Moltke. That is not because the Japanese have changed any one of their physical characteristics, for they are the very same men who the other day were chiefly known to us as performing the "happy despatch". They have changed simply because they were able to assimilate European results. Now, if that be a perfectly possible result, consistently with all the so-called laws of heredity, the same laws cannot be inconsistent with changes of a similar character within ourselves. You take a thorough ruffian,--a drinking, rowdy, fighting brute, who has stamped his wife or his friend into a jelly. You say that he is an illustration of slavism, or the reproduction of an ancient type which once had its place among his ancestors. The fact may be quite true; that he is, for example, acting-still in the spirit of those ancient Vikings who have been idealised by our romantic writers; but who, when they landed in an old British village, behaved pretty much as the modern roughs or some of those noble blackguards who are described in Mr. Rudyard Kipling's novels. But if you mean that he is divided from civilised beings by an impassable gulf, and is doomed to be a scoundrel by the shape of his skull, I venture to dispute the assumption. The Viking in a generation or two became the Norman knight, capable of the highest cultivation of his time; and even the rough, according to Mr. Rudyard Kipling, is capable, under judicious discipline, of developing some very fine qualities, chiefly, it is true, in the shape of devotion to his colours. To wean him from some of his weaknesses it is probably necessary to catch him rather younger. All, however, that I desire to say, for the present, is this--as it seems to me--very undeniable fact: that the difference between a civilised man and a barbarian, between the highest types of modern life and the apparently irreclaimable brutes who are exhibited in our police-courts, is not dependent upon the mark of the beast irreclaimably fixed upon them at their birth; but to certain later influences, which may or may not be brought to bear upon them effectually. There is nothing, for example, in the doctrine of heredity inconsistent with the belief that if such influences could be properly directed, the standard, say, of sobriety and prudence among the lowest classes might be improved, as much as the standard of the same virtues has been improved in classes above them. The consequences of such a change would, I suspect, be incomparably greater than the consequences of whole systems of laws regulating the hours of labour and whole armies of official inspectors.

But into this I need not go; and I have only one thing to say in 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.

Now, I may say, very briefly, that such a divergence of the two 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.