PUNISHMENT

(Lat. poena, punishtnent.) In Jurisprudence, the infliction of suffering, under legal sanction, upon those who have violated the law. It is undoubtedly true, that both in legislation and in public opinion respecting punishment, the vindictive theory which considered it as a retribution for crime, and to be governed by our moral feelings of indignation against the offender, has far too generally prevailed, and that the primary end, tlie interests of society, has been overlooked. But we are not quite certain whether the present course of opinion does not run too exclusively in the contrary direction; and whether those who adopt the common formula, that " the object of all punishment is the prevention of the offence in future," have reflected on all the consequences of that position. For instance, it is the common practice in this country as well as in others, to connect the administration of justice with the enforcement of the tenets of religion and morality. In pa ing sentence, wherever there is any peculiarity ni the case calculated to call forth such observation, the judge rarely fails to comment on the moral deformity of the act; not merely in its tendency to injure society, but subjectively, as evidencing moral depravity in the person committing it. The solemnities of public worship which form part of the ceremonial; the public harangues of the judges (as, for instance, in the English custom of charging the grand jury); the language in which the jury is commonly addre ed, both by the judge and the advocates; all these seem based on the a umption, that the moral quality of acts is one of the matters to be brought under their consideration. But if the judge has really no concern whatever with that moral quality, and is simply there to see that society may be guarded, as far as po ible, from exposure to material injury by fraud or violence, all these ceremonies are utterly out of place. They must either be defended as politic devices, employing the machinery of religion to aid in terrifying offenders from the commi ion of crime; or as conce ions to popular ignorance. And it is certain that in such a case they had far better be abolished alto get lier, as they strongly lead the mind to dwell on that false view of the object of punishment, which it is the object of Bentham and his school to extirpate. Again, in popular estimation, the moral atrocity of an offence is one of the elements in the correct measure of punishment. On whatever ground philosophers may object to sanguinary laws, this plain objection is that which has always prevailed in the public mind. In the case of forgery, for example, the feeling of the majority triumphed in the end over the severity of the law, not because it was thought disproportioned to the injury inflicted on society, or to the importance of repre ing the crime, but because it was thought not to deserve it in a moral point of view. Now all such expre ion of sentiment, on the theory in question, is founded on a wrong principle; and the writers who adhere to it are forced to admit this feeling as a disturbing cause, preventing the right doctrine from being fully carried out; they are forced to admit, as part of their definition of a good punishment, that it shall no£ be such as to shock the popular notion of moral justice; which is, in other words, to admit that penal laws must be governed in part by principles which they condemn as altogether wrong; a very mischievous conce ion for a legislator to make. That the interest of society is the great object of punishment must be conceded on all hands. That the specific object of preventing the offence from being committed is a very important part of that gener;il object, probably by far the most important, may also be conceded. But the question is, whether the general object does not comprehend other particular objects also; and whether a punishment, which should answer in the highest degree the advantage of repre ing that particular offence, or cla of offences, might not be. imperfect notwithstanding. This question can only be solved hy deciding the great preliminary difficulty of political science, in which so many others are involved; wliether the ruling power, ' 999 1 PUNISHMENT. which we call the state, or society, or the legislature, has or has not any moral authority. Those who conclude that it has nothing to do beyond preserving tha personal security and property of individuals, of course deny that it has any. But those who believe that it has, also, what may be termed a paternal power, and is entrusted by Providence with the maintenance of religion and moral principle, must, consistently, admit that there may be a moral object in punishment beyond the mere prevention of the offence. And it must be observed in pa ing, that those who do hold the state to po e such a moral authority, and have such moral duties imposed upon it, need not, therefore, hold those to he its principal objects. It may very well be that the primary object of the a ociation of men in a political body is security and self defence; yet that a ociation may have other ends not inconsistent with this. And although those other ends are in themselves incomparably the most important, it does not at all follow that they are the most important as regards the state. When men enter into a particular contract with each other, their mutual duties under that contract arc primarily those connected with the object of that contract; they may have other and more important mutual duties, which yet, as regards that contract, are secondary. No religious man will deny that the connexion of master and servant involves some duties of a very exalted character; but the principal object of. that connexion is, neverthele , the rendering of service in lieu of a remuneration. We have not space here to pursue this line of reasoning; but must proceed to take the moral vocation of the state as admitted, and consider the effect of that admi ion on the theory of punishment. In the first place, it would be a mistake to suppose that it justifies retribution as an object of punishment. No one can apportion retributive, justice who cannot judge of the motives of actions. The moral authority pf the state, even by those who have carried its divine character to the highest point, has only been likened to the paternal; and no father has the right to chastise a child by way of retribution. He has no right to punish at all, except wltli aview to reformation. Omitting this mistaken end, the real objects of punishment may be cla ed as follews: — 1. The interests of society; which must be subdivided into, i. Its security from the injury to person or property occasioned by the crime. ii. Its moral and religious improvement. And 2, The reformation of the offender. This is admitted as one of the ends of punishment by all writers; but Bentham and his followers regard it as such only so far as it conduces to the security of society by preventing the repetition of the offence; those who embrace the higher view, both on this account, and also as the fulfilment of the duty of the state towards the.ofi'endcr himself. Considered in either view, it is clearly a secondary object only, the good of society being the first. The security of society, is attained by punishment in fo'ur ways: l.By forcibly prevoqting the offender from repeating his offence: as by dcajji, mutilation, or perpetual imprisonment. 2. By reforming the habits of the offender, and thereby taking away the desire. 3. By deterring the offender from repetition by the fear of fresh punishment. 4. By deterring others through example. And this last is clearly the chief practical end of all legal inflictions. The admi ion of other principles, while it seems nece ary in order to satisfy our conception of the existence of the state as a moral agent, need not prevent the legislator from keeping this steadily in view. Our limits forbid us from pursuing farther the analysis of punishmnnt, and pointing out in what manner the different kinds and degree of it principally in use follow, or depart from, their legitimate ends. We will conclude with the cla ification of punishments given by Bentham, in his Theorie des Peincs, to use the title of the work as given by his translator Dumont. If Bentham's theory be defective in its main principles (and although we have presented the reader with some arguments against it, we do not a ert that they must be conclusive with all), it is at all events only from being imperfect, not erroneous; as far as it goes, it is. logical, consistent, and definite. And as he was nearly the first writer who in trod ticed anything like clearne or arrangement into the popular notions on penal laws, so we are inclined to think that, on the whole, he has done more for society in this particular than in any other of the various subjects to which he applied his reforming genius. It must not be forgotten that Sir S. Romilly and Sir J. Mackintosh were the pupils who carried fiis speculations into practice. He divides punishments into corporeal and privative. The first of these are, 1. Simply afflictive, those which consist in the mere infliction of temporary pains, the lash, . 2. Complexly afflictive, in which pain is joined 3 S 4 [s. 1012]