A common method of punishing offenders is to impose fines upon them, so that if a man has money he may commit any of a large number of offences without any risk of imprisonment. It may even be profitable for him to do so, for the fines for doing some illegal acts by which money can be made are in some cases less than the profits to be made by transgressing the law. It is a queer condition of affairs. The principle of restitution is one that can be readily understood and approved, but fines are not an attempt to apply such a principle. They go, not to any person who may have been injured, but to the local exchequer for the most part. This is a vicious arrangement, for it is an incitement to the local authorities to make as much as they can off the offenders in their district; and whether they are ever moved by it or not, it is not proper that they should have any interest in filling their coffers by such means.
Fines fall very unequally as a burden on those subjected to them. The amount inflicted, though small, may be out of all proportion to the offender’s means; half-a-crown is not much, but it is a great deal to the man who has not got it. Before the same court you may have two men charged with similar offences. One is a motorist who has exceeded the speed limit; the other is a driver of a light van who in trying to catch a train has been reckless in his driving. The motorist may be fined in five times the amount inflicted on the vanman, but to the one the sum only represents a small inroad on his means, while to the other it represents something like a week’s wages. There is not one law for the rich and another for the poor; if there were they might not be so unequally treated. There is the same law for both; but in its effect it favours the rich at the expense of the poor, and that is not to the ultimate advantage of the community.
The fine is an alternative to imprisonment, and in practice it is a peculiarly striking example of our whole system of punishment. The magistrate on behalf of the public says to the offender, in effect, “You have transgressed the laws of the state in which you live and must therefore be punished. I do not wish to be too hard on you, but you must either pay us five shillings or we shall keep you for three days.” Now as people cannot be kept in prison without cost being thereby incurred, the effect of the sentence is that if the offender does not pay to the police five shillings on his own account the taxpayer pays the prison five shillings. The culprit is injured by being sent to prison; but the public is also injured by having to pay. It is remarkably like the operation known as cutting off the nose to spite the face. This is indeed the effect of most of our punishments; they injure others besides the criminal, and there is room for grave doubt as to whether they benefit anybody. Once the punishment has been undergone, the offender is supposed to have expiated his offence; but as there is no positive expiation for past wrongdoing, except it may be future welldoing, this is a fiction.
It is not a wise thing to teach the ignorant that they can pay for any harm they do; least of all to teach them that they atone by imprisonment for injuries inflicted on others. It is no compensation to a man who has been hurt to know that his assailant is being lodged and fed at his expense, and that some day he will come out no better than when he went into his place of retreat. When a man is disabled by injuries he has received his family is likely to suffer, and if he be a working man they may be in peril of becoming destitute. His assailant is shut up, and his family too may suffer in a similar way and to an equal degree. The law will see that the offender is taken care of, but the injured person and the families of both the parties are left to struggle as best they may. What harm have they done? They are neglected, and may suffer hunger unless they also do harm, while the offender is “expiating” his offence at the public expense.
In so far as punishment is retributive it is foolish and indefensible, harming not only those on whom it is inflicted, but those who inflict it. If as individuals we are not justified in fostering a spirit of revenge, we are as little entitled to encourage such a spirit in our corporate capacity. Their actions show that some men are capable of doing very wicked things, and that is a very good reason for interfering with them; but it is no reason for interfering in such a way that we are all burdened by it, while there is no reasonable expectation that they are being brought to a better frame of mind.
Until late in the last century the Crown Prosecutor craved for punishment on those who had committed indictable offences “in order to deter others from committing the like offence in all time coming.” That form has been dropped, but the theory is still widely held that punishment deters others than those convicted. The prison returns show that there is no reason for claiming that it deters many of those who have been punished from repeating their offensive conduct. The “others” in some numbers are always recruiting the ranks of those who habitually transgress, but the great majority of our fellow-citizens keep out of prison. Are we to believe that this is because the punishment of the prisoners sent there has deterred them from committing offences? It may be the reason; but it cannot be proved even if it is. For my own part, I have never seen any cause to believe that my acquaintances and friends refrain from beating their wives and from taking what is not their own because if they did these things they might be sent to jail; and I have observed that those who theorise most about the conduct of others and its causes, are frequently quite unable to advance any evidence from their own observations and experience that would support their theories.
There can be no doubt that the dignified jurists who adopt Mansfield’s view (that a man should be hanged not because he had stolen a horse, but in order that others might not steal horses) would resent the suggestion that they themselves are honest simply from the fear of the law, and it would show less conceit of themselves and more knowledge of their neighbours if they assumed that the mass of their fellow-citizens are no worse than they.
In my day at school some boys were unmercifully whacked, when the master got into a temper as a result of their iniquity. The theory was that this discouraged others from committing the same offences; but as boys are as often punished for the stupidity of themselves or the teacher as for any wilful misconduct on their part, the theory was not in accord with the practice. When some unfortunate culprit was called up, the feelings of the rest of us were of a mixed nature. Partly we were sorry for him, but the degree was dependent on our personal regard for him; partly there was a feeling of contempt for him in so far as he was imprudent enough to let himself be caught; partly there was some curiosity as to how he would demean himself; and mainly there was thankfulness that we were not in his shoes. The punishment did not deter any of us from doing the same thing; but it did make us more careful in the doing of it, and it gave some a training in duplicity that appears to have been of use to them in their business careers.
In so far as the teacher was considered to be a tyrant it was rather a feather in a boy’s cap than otherwise if he could disobey, especially if he escaped. Even if he were caught it was not considered a disgrace, and if he were severely punished the clumsiness he had shown in playing his pranks was overlooked and he was treated with the respect due to a martyr. It was a small matter to break the master’s rules, though nobody cared to be caught; but it was a serious thing for a boy to outrage the standard of conduct which was adopted by his neighbours. The teacher who knew this could command obedience so long as he worked on the knowledge; and it is the same with men as with boys. They react most powerfully to the opinion of the circle in which they move; if it were not so they would soon cease to be members of it. Who sets the standard it is usually impossible to say; but each influences the other, although one personality may be more dominant than any other. He is the bad one when there is a bad one; not because he is worse morally than others, but because he is usually more daring and active; and as the commandments by which boys are ruled are mainly negative, his positive personality brings him into conflict with them and leads others after him.
But there are social circles in our midst where men are placed in the same relation to the law as boys were at school. They are told to respect it, and they know they must obey it at their peril; but it appears to them as a series of senseless and unjust prohibitions which interferes with their comfort and does not offer them any protection against their enemies. They do not need policemen to protect their property, for they have none to protect; and they feel quite able to look after their personal safety. What they would appreciate would be protection from what they consider the exactions of the factor and the tax-collector, and there are no police of that sort yet. They have no respect for the law any more than I have respect for a steam-engine, though I keep out of its way. If the law is something that protects other people from them, but does not protect them from other people, they cannot be expected to hold it in much respect; they may look on it as their enemy. Many do not go so far, though they distrust it and its ministers; but there are coteries, groups, who do regard the law as something that it is praiseworthy to break. I am not now referring to a man who makes a living by theft, but to the young people who are brought up in certain slum districts and who there contract inverted ideas of morality. Granted the existence of such circles, it is easy to see how defiance of the law may get a young man the admiration of his fellows; and as there are parts of the city where homage is rendered to him who has most frequently and cleverly outraged the law by stealing, or by tricking its representatives—where so far from honesty being esteemed a virtue it is sneered at; where chastity is at a discount, and the thief, rake, and bully is the ideal character—there is no reason for any wonder that in the face of punishments there is no lack of offenders. These people see no reason to respect our rules of conduct. Our punishments may exercise a deterrent effect on them to the extent of causing them to modify their methods of operation, but the bogey we fix up for their warning will not make them virtuous or cause them to alter the standards they have set up.