The truth is that the severity of the punishment has no effect upon the frequency or the savagery of crimes. The criminality of a community depends on the value and emphasis of the moral education which it bestows upon the rising generation. It can prevent its members, at any rate the average, normal type, from developing into criminals. But the fear of punishment has no deterrent effect upon those whose criminal impulses have not been subjugated by social discipline. The severity of the punishment does not contribute anything to the defence of society. It only proves that the lawgiver and the criminal judges are on the lowest level of civilization which corresponds to a widespread and barbarous criminality, and that their modes of thought and feeling are horribly like those of the criminals whom they sentence to torture, the gallows, and the wheel.
Positive law aims at defending society, and tries to attain its end by punishing transgressions. It provides no reward for conscientious obedience. The law has no honours to bestow on blamelessness and virtue. Society felt the want of this and made attempts to encourage honourable conduct by conferring distinctions, just as it tries to intimidate vice by punishing crime. These attempts were not particularly happy. The bestowal of titles and orders is no recognition of virtue, but a means adopted by governments to ensure devotion to power. An arrangement was made in some places to honour model citizens in public and crown them with laurels, but it soon came to grief owing to indifference and mockery. A private individual wanted to fill this gap in social institutions. The Count of Montyon, a son of the eighteenth century, whose philosophy he had imbibed, instituted the prizes for virtue which are distributed annually by the French Academy. They are bestowed on modest integrity in humble circumstances which has manifested a sense of duty, neighbourly love and self-sacrifice. This friend of man has had few imitators, and that is understandable. Sound common sense realizes that rewards like the Montyon prizes for virtue do not with the infallibility of a natural law fall to the lot of merit, but are nearly always adjudicated to the prizewinner by chance, by recommendation, and by all sorts of influences that have nothing to do with virtue; and it seems unjust that among equal claims some should be satisfied while others, the great majority, are not. It would be vain to contend that one virtue which goes empty-handed is not unfairly treated when another gets a benefit on which it has not counted, and that in a moral character, such as alone would be eligible for a prize for virtue, there is no room for envy. That would be the moral of the Gospel concerning the labourers who came at the eleventh hour, which has met with opposition from others besides the contemporaries of Jesus.
On the whole, the community has never felt called upon to solve the moral problem of the reward of virtue. It has always contented itself with the punishment of vice and has given its law threatening, but not encouraging, sanctions. This attitude shows that it has always had a clear conception of its moral task. In its positive law it never included anything but that minimum of Morality that was absolutely necessary to its existence, and without which it would dissolve into its original elements, its order would be replaced by chaos, by the war of all against all. It must insist on the observance of this minimum; it must use forcible means to achieve this. But it does not feel justified in demanding more than this minimum, because more is not claimed by its instinct of self-preservation. A surplus of virtue over and above the amount necessary for the life of society is desirable; but it does not lie within the scope of the natural functions of the community, determined by its organic necessities, to achieve this by compulsion and the provision of legal rewards as an encouragement. It is the business of the individual to work at his own moral improvement, and the community cannot interfere directly in the matter. It is enough that it encourage this work indirectly by bestowing care on the culture and education of the individual, by making it the duty of its public schools to inculcate good principles, and by creating a public opinion which surrounds all the activities of higher morality with admiration, respect and gratitude. The moral education of the individual is not an object with which laws are concerned; it is the result of the constant, vital influence of the community, and can have no sanction other than the increase of well-being of every single person within the social union, which is a natural consequence of raising the moral level of the community.
The penal sanctions of positive law have a gross materialism about them corresponding to the definite concreteness of the actions with which positive law deals. The broad field of Morality, however, which is outside the narrow sphere of the laws, has no room for sanctions of a material nature. The penalties prescribed by law are directed to actions which, if they became general, would in a very short space of time result in the dissolution of society. The community essays by forcible measures to prevent this kind of action, and these measures more or less fulfil their aim, whether you interpret their use on the theory of discipline, of expiation and purification by repentance, of improvement and moral re-birth, or of intimidation. All these theories were invented later on, after the community had been convinced by experience that punishment, if it does not entirely prevent crime, at least limits it sufficiently to make the continued existence of society possible, and more or less to guarantee to its members the safety of their life, their property and their personal dignity.
Against transgressions of the moral law, the results of which are not immediately obvious, such as ruthless selfishness, blunted sympathy and lack of active neighbourly kindness, the community does not proceed with forcible measures; firstly, because it cannot establish their existence convincingly and hence cannot try them in a court of justice, and secondly, because it does not recognize them as constituting an immediate danger to its existence. Now, as the sanctions set up by society are not applicable to these transgressions, an individual whose mind does not penetrate very far into matters is disquieted, for accustomed as he is to the spectacle of the steady justice of the state, he seeks the counterpart in the forms of this justice in the world of Morality, and does not discover it at the first glance. He asks anxiously where are the police, the public prosecutor, the examining magistrate, the criminal court, the prison for sins against Morality, and invents them, since he cannot find them. He transfers to the hereafter the sanctions of Morality, which are not visible on earth. He cannot make up his mind to renounce them, because the fact that sins against the moral law go unpunished would seem to him to indicate intolerable anarchy, comparable with the state of a community where everyone could murder, rob and mutilate to his heart's content without incurring the risk of the least personal unpleasantness.
In the sphere of the moral law punishment certainly does not follow hot foot upon crime, but it nevertheless does not fail to appear, and becomes visible when the eye is capable of embracing long periods of time and of tracing intricate connexions. The sanctions of the moral law differ from those of criminal law, but they are not wanting. They are of a subjective and of an objective character. The subjective punishment for a sin against the laws of Morality is remorse. It is inflicted by the inner judge who rules in the consciousness of the individual, by conscience, and penetrates to the very deepest depths of a person's mind which no outward punishment imposed by the community ever reaches. It is not only religious and political martyrs who endure torture and death with proud serenity, conscious that they are morally immeasurably superior to their executioners; even common criminals remain perfectly unmoved by their punishment and regret only that they are weaker than their captors. Prisons are full of convicts who look upon their condition as that of prisoners of war. They have been worsted in their battle with law. That seems to them a misfortune but not a disgrace. They are neither humble nor contrite, but revengeful. They are determined and ready to take up the duel with society as soon as an opportunity offers and they may hope to do so with some prospect of success.
But remorse is an unresisting submission to the verdict of conscience and the consciousness of one's own unworthiness. It is the recognition of the justice of the sentence which brands one, and the constant, anguished realization that one's personality has been deservedly humiliated, dishonoured and deprived of its rights. As a spiritual process, remorse causes the sinner continually to relive the misdeed he committed, while at the same time he is fully conscious of its atrocity. The ego becomes dual, one part active, the other watching and judging. The one again and again perpetrates its misdeed, the other looks on horrified and suffers agonies. It is one long torture and disgrace of self. Remorse condemns the sinner perpetually to repeat in his mind the deed which fills him with horror of himself. This state of mind is the nearest approach to eternal damnation in hell. There is only one means of temporary escape: to extinguish memory by narcotics. That is why remorse not seldom leads to drunkenness. Shakespeare, with a poet's infallible insight into the soul, has grasped and depicted the nature of remorse, the uninterrupted, torturing presence of the misdeed in man's consciousness. Lady Macbeth sees her hands ever stained with the blood of the innocent royal victim whom she herself did not even murder, and she complains that "all the perfumes of Arabia will not sweeten this little hand." Leontes, in the "Winter's Tale," on hearing of Hermione's alleged death, of which he believes himself guilty, mourns:
"Once a day I'll visit
The chapel where they lie; and tears shed there
Shall be my recreation: so long as nature
Will bear up with this exercise, so long
I daily vow to use it."
Remorse is the most effective of the subjective sanctions of Morality; it is almost too effective, for owing to its duration and severity the punishment easily grows disproportionate to the crime. But it has one great disadvantage, it affects only better natures who have an active conscience and spiritual delicacy, while it spares the wicked who have no conscience, who perpetrate their misdeeds contentedly, without a qualm, and regret them only when they are discovered and lead to unpleasantness.