[51] Concerning the Dacotahs, Prescott observes, “There are cases where the Indians say retaliation is wrong, and they try to prevent it” (Schoolcraft, Indian Tribes, ii. 197).
The aggressive character of moral disapproval has become more disguised, not only by the more scrutinising attitude towards the resentment and retaliation which distinguishes the moral consciousness of a higher type, but by the different way in which the aggressiveness displays itself. The infliction of suffering merely for the sake of retribution is condemned, and the rule is laid down that we should hate, not the sinner, but only the sin.
Punishment, which expresses more or less faithfully the moral indignation of the society which inflicts it, is externally similar to an act of revenge; it causes, or is intended 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.[52] According to Plato, a reasonable man punishes for the sake of deterring from wickedness, or with a view to correcting the offender.[53] Aristotle looks upon punishment as a moral medicine.[54] 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.”[55] 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 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.”[56] For a long time the view taken by Hobbes, that “the aym of Punishment is not a revenge, but terrour,”[57] remained the leading doctrine on the subject, among philosophers, as well as legislators. It was shared by Montesquieu,[58] Beccaria,[59] and Filangieri,[60] by Anselm von Feuerbach[61] and Schopenhauer,[62] and, in the main, by Bentham.[63] During the nineteenth century the principle of determent was largely superseded by the principle of reformation; whilst certain contemporary criminologists—like some previous ones[64]—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.[65]
[52] Cf. Laistner, Das Recht in der Strafe, p. 9 sqq.; Thonissen, Le droit pénal de la république Athénienne, p. 418 sqq.
[53] Plato, Protagoras, p. 324. Idem, Politicus, p. 293. Idem, Gorgias, p. 479. Idem, Leges, ix. 854; xi. 934; xii. 944.
[54] Aristotle, Ethica Nicomachea, ii. 3. 4.
[55] Seneca, De clementia, i. 22. Cf. Idem, De ira, i. 19.
[56] Grotius, De iure belli et pacis, ii. 20. 4 sqq.
[57] Hobbes, Leviathan, ii. 28, p. 243.