[88] Aristotle, Rhetorica, ii. 3. 5.
[89] Christian, Caroline Islands, p. 72.
[90] Adam Smith, Theory of Moral Sentiments, p. 138 sq.
[91] Bacon, ‘Essay IV. Of Revenge,’ in Essays, p. 45. Cf. Montaigne, Essais, ii. 27 (Oeuvres, p. 384).
We can now see the origin of the idea that the true end of punishment is the reformation of the criminal. This idea merely emphasises the most humane element in resentment, the demand that the offender’s will shall cease to be offensive. The principle of reformation has thus itself a retributive origin. This explains the fact, otherwise inexplicable, that the amendment which it has in view is to be effected by the infliction of pain. It also accounts for the inconsistent attitude of the reformationist towards incorrigible offenders, already commented upon. Resentment gives way to forgiveness only in the case of repentance, not in the case of incorrigibility. Hence, not even the reformationist regards incorrigibility as a legitimate ground for exempting a person from punishment, although this flatly contradicts his theory about the true aim of all punishment.
Thus the theories both of determent and of reformation are ultimately offspring of the same emotion that first induced men to inflict punishment on their fellow-creatures. It escaped the advocates of these theories that they themselves were under the influence of the very principle they fought against, because they failed to grasp its true import. Rightly understood, resentment is preventive in its nature, and, when sufficiently deliberate, regards the infliction of suffering as a means rather than as an end. It not only gives rise to punishment, but readily suggests, as a proper end of punishment, either determent or amendment or both. But, first of all, moral resentment wants to raise a protest against wrong. And the immediate aim of punishment has always been to give expression to the righteous indignation of the society which inflicts it.
Now it may be thought that men have no right to give vent to their moral resentment in a way which hurts their neighbours unless some benefit may be expected from it. In the case of many other emotions, we hold that the conative element in the emotion ought not to be allowed to develop into a distinct volition or act; and it would seem that a similar view might be taken with reference to the aggressiveness inherent in moral disapproval. It is a notion of this kind that lies at the bottom of the utilitarian theories of punishment. They are protests against purposeless infliction of pain, against crude ideas of retributive justice, against theories hardly in advance of the low feelings of the popular mind. Therefore, they mark a stage of higher refinement in the evolution of the moral consciousness; and if the principles of determent and reformation are open to objections which will be shared by almost everyone, that is due to other circumstances than their demand that punishment should serve a useful end. As we have seen, they ignore the fact that a punishment, in order to be recognised as just, must not transgress the limits set down by moral disapproval, that it must not be inflicted on innocent persons, that it must be proportioned to the guilt, that offenders who are amenable to discipline must not be treated more severely than incorrigible criminals. These theories also seem to exaggerate the deterring or reforming influence which punishments exercise upon criminals,[92] whilst, in another respect, they take too narrow a view of its social usefulness. Whether its voice inspire fear or not, whether it wake up a sleeping conscience or not, punishment, at all events, tells people in plain terms what, in the opinion of the society, they ought not to do. It gives the multitude a severe lesson in public morality; and it is difficult to see how quite the same effect could be attained by any other method. Retaliation is such a spontaneous expression of indignation, that people would hardly realise the offensiveness of an act which evokes no signs of resentment. Of course, punishment, in the legal sense of the term, is only one form—the most concrete form—of public retaliation; it is, indeed, probable that public opinion exercises a greater influence on men than punishment would do without its aid.[93] But punishment, in combination with public opinion, has no doubt to some extent an educating, and not merely a deterring, influence upon the members of a society. As Sir James Stephen observes, “the sentence of the law is to the moral sentiment of the public in relation to any offence what a seal is to hot wax. It converts into a permanent final judgment what might otherwise be a transient sentiment.”[94] Finally, it must not be overlooked that the infliction of punishment upon the perpetrator of a grave offence gratifies a strong general desire, and, even though the pain which always accompanies an unsatisfied desire would by itself afford no sufficient justification for subjecting the offence to such intense suffering, other more serious consequences might easily result from leaving him unpunished. The public indignation might find a vent in some less regular and less discriminating mode of retaliation, like lynching; or, on the other hand, by remaining unsatisfied, the desire might dwindle away from want of nourishment, and the moral standard suffer a corresponding loss.
[92] On the limited efficiency of punishment as a deterrent, see Ferri, op. cit. p. 82 sq. On the moral insensibility of the instinctive and habitual criminal, and absence of remorse, see Havelock Ellis, The Criminal, p. 124 sqq.
[93] Cf. Locke, Essay concerning Human Understanding, ii. 28. 12 (Philosophical Works, p. 283); Shaftesbury, ‘Inquiry concerning Virtue and Merit,’ i. 3. 3, in Characteristicks, ii. 64.
[94] Stephen, History of the Criminal Law of England, ii. 81. Cf. Shaftesbury, op. cit. ii. 64: “As to punishments and rewards, their efficacy is not so much from the fear or expectation which they raise, as from a natural esteem of virtue, and detestation of villainy, which is awaken’d and excited by these publick expressions of the approbation and hatred of mankind in each case.“