From The Fortnightly Review.

THE ETHICS OF PUNISHMENT.

and I concede that if it can be made remedial, so much the better, according to the

I HAVE before me the latest contribu-inscription placed by Clement XI. on the tion to the world's criminal jurisprudence: est improbos coercere pœna, nisi probos door of the Prison of St. Michael, “ Parum the recently enacted" Italian Penal Code," together with the elaborate report with which it was submitted to the Chamber of

efficias disciplina." But I deny that this is a sufficient account of punishment. I. Deputies by Signor Zanardelli, the minis- say that its primary object is not the protection of society, nor the reformation of ter of grace, justice, and public worship of the criminal. I say that it is an end in the Italian kingdom. These documents itself; that it is first and before all things are for many reasons of great interest, and vindictive. I can well imagine how rewould well repay detailed examination. At present, however, I am concerned with pulsive these words will sound in the ears of many. To me, that so elementary a them only from one point of view. The first question which a penal code sug sad and strange indeed. It is a melantruth should even require vindication is gests is, What is the rationale of punish-choly token how deeply the philosophy of ment? That question Signor Zanardelli does not so much as discuss, deeming, relativity has de-ethicized the public mind of a generation, apparently, that the matter is too plain. He contents himself with citing the dictum, "Pœna in paucos ut metus in omnes," observing by way of comment upon it, that "when the penalty surpasses the limit required by this necessary end of prevention, it becomes useless punishment." His mind is dominated by the utilitarian view of the subject; and so in another place in his report he lays it down as a kind of axiom, "The whole endeavor of the legislator, in the discipline and proportion of penalties, ought to aim at rendering them capable of greater repressive energy, and of more vigorous corrective effect, at the same time." Punishment should deter and correct, and so prevent crime. That, according to this jurisprudent, is the whole account of criminal justice. Is it a sufficient ac

count?

A great number of people, I take it, will be surprised that the question can even be asked. It has never dawned upon them that there can be any other reasons for punishing a man, except to deter him, and by his example others, from the commission of crime, and, if possible, to reform him. And of these two reasons, the first would be taken to be the primary and chief. The great object of the penal law is held to be to deter from crime by presenting to men weightier motives for abstaining from it, than those which invite to its commission. Now I am far from denying that punishment is, and ought to be, deterrent;

wanting virtue to be strong Up to the measure of accorded might, And daring not to feel the majesty of right. But let us look at the subject a little in detail.

We will start from a fact which every one will admit: the fact that punishment is associated in our minds with wrongdoing. Is the association necessary or accidental? The philosophy of relativity says it is accidental. Thus Professor Bain tells us, "The imposition of punishment is the distinctive property of acts held to be morally wrong; " which is merely a more explicit statement of a doctrine of Mill's, and which indeed is substantially the teaching of utilitarian, experimental, and physical moralists generally. You make an act wrong, they tell us, by making it penal. It is not punished because it is wrong, but wrong because it is punished. Right and wrong, according to these teachers, are purely conventional. Moral laws are for them, as Mr. Leslie Stephen tersely puts it, "merely statements of essential conditions of social welfare," and ethical philosophy is a chapter in physics. Hence their idea of law is purely empirical. Force sufficiently explains it. Do we put in a plea for conscience? "Conscience," Mr. Leslie Stephen pronounces, “is part of an obsolete form of speculation." And if that contemptuous dismissal of it does not satisfy us, Professor Bain is at hand to

Hooker, "which men commonly use to call the law of nature, comprehendeth all those things which men by the light of

explain that its " germ and commence- "all thinking things, the objects of all ment"-mark the words "is the dread thought." Of this law the organon is the of punishment." Now what are we to say practical reason, the moral understand. to the doctrine which I have thus briefly ing, conscience. "Law rational," says but accurately unfolded? I take leave to call it a "doctrina dæmoniorum," as dethroning that supreme law which is the very voice of the Absolute and Eternal their natural understanding evidently ("God is law, say the wise"): atheistic in the worst sense of the word, as striking, not at this or that formula wherein the belief in Deity has found expression, but at the very root of morality which issues in the divine concept. In opposition to it-even at the risk of appearing "antiquated" to Mr. Stephen-I maintain with Kant, that the connection between moral evil and punishment is not accidental, but necessary; that it is the work of reason, not of human caprice. "Reason," Kant tells us, "invariably attaches the idea of blameworthiness and punishment to the idea of guilt." We will pursue this theme further.

What do we mean when we talk of the moral law? We mean, I venture to say, that rule of action which necessarily arises out of the relation of reason to itself as its own end. This is a necessity of a quite unique kind. The word is sometimes misapplied to the regular sequence or uniform movements of matter, the simultaneity of sensible events. It is rightly used of mathematical relations. But mathematical necessity is one thing; moral necessity is quite another. The special characteristic of moral necessity is denoted by the word "ought." It is nonsense to say that two sides of a triangle ought to be greater than the third, or that two and two ought to make four. The necessity which the word "ought"| expresses is derived from a law of ideal relation, obligatory on our wills. Nor can you derive that necessity from self-love, or prudence, or interest, tribal or personal. It is absurd to say that a man ought to seek "agreeable feeling." Expedience, utility, can but counsel. The moral law commands. It claims obedience as a thing absolutely good, as an end in itself; and by that very claim it exhibits itself as transcending the range of human experience, as universal, eternal, supreme over

know, or leastwise may know; to be beseeming or unbeseeming, virtuous or vicious, good or evil for them to do. The several grand mandates, which being imposed by the understanding faculty of men, must be obeyed by the will of men, are such that it is not easy to find men ignorant of them." Are we here met with an objection that as a matter of fact the moral judgments, which have obtained among men, are diverse and irreconcilable? The objection is not a novel one, and, as Hooker goes on to observe, it was sufficiently met by St. Augustine a thousand years ago. Do as thou wouldst be done to, is a sentence which all nations under heaven are agreed upon, and here is a sufficient germ for a complete ethical code. The sense of duty is a form of the mind itself, although it may be said to exist as "a blank formula," which is filled up in a variety of ways. "The altruistic instinct," as the barbarous jargon of the day calls it, is as much a fact of human nature as "the egoistic instinct." The sense of duty is universal; it is an essential attribute of our nature, inseparable from the consciousness of self and nonself; not a complete revelation, but the revelation of an idea, bound to develop according to its laws, like the idea, say of geometry. The ethical ignorance of barbarous tribes is no more an argument against the moral law, than their ignorance of the complex and recondite properties of lines and figures is an argument against geometrical law. It is the function of reason, here as elsewhere, to evolve abstract truths from the complex and chaotic mass of appearances and events. Human history is the history of the education of conscience, of the ever-increasing apprehension of the moral law, of the wid ening of the circle of ethical obligation.

I hold, then, that the first fact about man is his consciousness of the moral law, and

compulsion is undone. He is restored to his right. The moral law must rule over all; over the good by their submission to its behests, over the evil by their endurance of its penalties. Justice is an absolute and aboriginal principle of it. And justice is well defined by the Roman jurisprudent as "the constant and per petual will to render to every man his right." Punishment is the right of the wrong-doer. It is the application of justice to him. "It is," in St. Augustine's fine phrase, "the justice of the unjust." The wrong whereby he has transgressed the law of right has incurred a debt. Justice requires that the debt must be paid, that the wrong must be expiated.

Yes, expiated. This is the first object of punishment - to make satisfaction to outraged law. Nothing is more profoundly unphilosophical than the notion so dear to the sickly sentimentality of the day, that when a man ceases to do evil, a sponge is passed, so to speak, over the reckoning against him.

of his obligation to obey it. But the very | tion, to him of that reason wherein he too words "law" and "obligation" imply a consists, and which he has outraged. His penal sanction. The categorical imperative "Thou oughtst" does not, and cannot mean, "Thou mayst if thou wilt, and if thou dost not, thou wilt be none the worse." What it does mean is this: "That is right; it should be; it is unconditionally desirable; thou canst do it, and thou must; thus dictates the law of thy being, the law that thou art born under, which it is thy great good to obey, thy supreme evil to disobey." Such is the witness in ourselves. And its testimony is supremely rational. "Good doth follow unto all things by observing the course of their nature, and, on the contrary side, evil by not observing it. And is it possible that man being not only the noblest creature in the world, but even a world in himself, his transgressing the law of his nature should draw no manner of harm after it? Yes tribulation and anguish unto every soul that doeth evil." So Hooker, who never wrote more judiciously. His argument does but formally justify an universal, ineradicable feeling of humanity. The deep conviction that in moral evil must be sought the explanation of physical evil, is the common heritage of our race. That there is an inseparable connection between wrong-doing and punishment, is an organic instinct of conscience. And instinct we may call it, with Kant, the voice of God- -never deceives. There is always a reality which corresponds with its anticipation. What answers to the Profoundly true are these verses of the instinct of retributive justice is punish- most profound of living poets. Similar is ment. It is as real as the law. It is con- the teaching of Plato in the " Gorgias," tained in the law. It is involved in the so strangely misapprehended by some of transgression. It is, in Hegel's phrase, his modern interpreters, who have read "the other half of crime." Let us realize him with the eyes of a nineteenth-century this. Punishment is not something arbi- greengrocer. "The doer of unjust actions trary. Wrong-doing-called, variously, is miserable in any case; more miserable, according to the point of view from which however, if he be not punished and does it is regarded, sin, crime, delict-is the not meet with retribution, and less miserassertion of a man's own particular self-able if he be punished, and meets with will against the universal will, which is supreme reason, supreme right- for reason and right are synonomous. Penalty is the reassertion of the universal will. It is not a wrong done to the criminal. It is a right done to him to redress his wrong. It is a manifestation, an applica

A spotless child sleeps on the flowering moss—
'Tis well for him; but when a sinful man,
Envying such slumber, may desire to put
His guilt away, shall he return at once
To rest by lying there? Our sires knew well
The fitting course for such; dark cells, dim
lamps,

A stone floor one may writhe on like a worm;
No mossy pillow blue with violets!

retribution at the hands of gods and men." The whole argument of Socrates in this famous passage is founded on the need of expiation: "The greatest of evils," he insists, "is for a guilty man to escape punishment." For "he who is punished and suffers retribution, suffers justly; and jus.

tice is good; so that he who thus suffers, | edifice can be surely established. Rear suffers what is good." St. Augustine has summed it up in four pregnant words: "Nulla poena, quanta pœna!"

it upon any other foundation, and you do but build upon sand. However fair the structure may seem, fall it must, and great will be the fall of it.

Such is the moral law, and such its sanction. Kant finds in it a natural rev- Here, then, in universal reason, finding elation of pure theism. Tied down to the expression as the moral law, is the very phenomenal world, as he esteems, on all raison d'être of government. Man, as sides of our being, by the very conditions man, has no claim upon my obedience. of knowledge, we have here a way of es- Only to the law of right, speaking through cape into the noumenal. He judges that human ministers, is that obedience due. the realization of the highest good which Man is social qua rational. He is gregathe moral law, the practical reason, pre-rious and something more; he is a polit scribes, implies an order above that of ical animal; civil polity is his natural nature. There must be, he argues, a life state. And here is to be found the underbeyond the phenomenal, where the tri-lying principle which makes human justice umph of the moral law shall be assured, just. The moral law apprehended, not where its rewards and penalties shall be made, by our practical reason, implies that adequately realized; there must be a su- right is rewarded and wrong punished. preme moral Governor, who will bring That, as we have seen, is involved in the about that triumph. Thus the speculative very conception of law. Criminal jurisideas of God and immortality are practi- prudence is simply a moral judgment excally warranted. And here is the crownhibited in visible form. Thus Aquinas, of that ethical teleology, as which we must with his usual clearness and precision: reckon the philosophical system of this "The law of nature"-that is the law illustrious thinker, viewed as a whole. arising from that divine reason which is But in the moral law Kant finds not only the nature of things "proclaims that he the promise of the life which is to come, who offends should be punished. But to but also of that which now is. It is the define that this or that punishment should great fundamental fact, not only of indi- be inflicted upon him, is a determination vidual existence, but of the social order. drawn from the law of nature by human It is the supreme rule alike of private and law." And so Butler: "Civil government public action; the sun of righteousness being natural, the punishments of it are illuminating the world of rational being, natural too." and there is nothing hid from the heat thereof. For the great thinkers of the ancient world all duties-officia· were included in ethics; jurisprudence was a part of moral philosophy. The masters of the medieval school judged likewise. It is from the time of the Renaissance that we may trace the de-ethicizing of public life. Dr. Martineau has correctly observed that by Luther morals were treated "as matters of social police." Our modern utilitarianism is the logical outcome of his antinomianism. Kant, who had drunk so deeply of those

This is the true philosophy of criminal law. In matter of fact, as Sir Henry Maine has pointed out, two great instincts lie at the root of it: to avenge and to deter. Both are reasonable and right. Resentment at wrong, desire of retribution upon the wrong-doer, are primordial principles as deeply implanted in our nature as pity or desire of self-preservation implanted by the same Almighty hand, and as legitimate, nay, necessary. They are organic instincts, which we possess in common with the whole creation, groaning and travailing in pain together with us, in the struggle for existence, throughout na

Mellifluous streams, that watered all the ture's illimitable sphere of carnage and

schools

Of Academics, and the Stoic severe, cruelty. But it is an essential condition of civilized human life that individual has again pointed the world to a more ex- retaliation, sure to be passionate and excellent way. He deduces the institution cessive, should be superseded by the pasof the State from the categorical impera- sionless punishment of law. The primitive tive of duty. It is for him essentially an rule was the lex talionis. It was said by ethical society, rooted and grounded in them of old time, An eye for an eye, and a the moral law. Its very foundation is the tooth for a tooth. And this was said, St. rational acknowledgment that there are Augustine well points out, not to foster eternal, immutable principles, and rules, revenge, but to check it. The natural tenof right and wrong. This is the everlast-dency of the injured person is to do unto ing adamant, upon which alone the social the offender as he has been done unto,