177. Under what conditions a person needs to be thus dealt with, what particular actions on his part constitute such an interference, is a question which can only be answered when we have considered what powers in particular need to be secured to individuals or to officials in order to the possibility of free action of the kind described. Every such power is a right of which the violation, if intended as a violation of a right, requires a punishment, of which the kind and amount must depend on the relative importance of the right and of the extent to which its general exercise is threatened. Thus every theory of rights in detail must be followed by, or indeed implies, a corresponding theory of punishment in detail, a theory which considers what particular acts are punishable, and how they should be punished. The latter cannot precede the former: all that can be done here is further to consider what general rules of punishment are implied in the principle on which we hold all right of punishment to rest, and how far in the actual practice of punishment that principle has been realised.
178. It is commonly asked whether punishment according to its proper nature is retributive or preventive or reformatory. The true answer is that it is and should be all three. The statement, however, that the punishment of the criminal by the state is retributive, though true in a sense that will be explained directly, yet so readily lends itself to a misunderstanding, that it is perhaps best avoided. It is not true in the sense that in legal punishment as it should be there survives any element of private vengeance, of the desire on the part of the individual who has received a hurt from another to inflict an equivalent hurt in return. It is true that the beginning of punishment by the state first appears in the form of a regulation of private vengeance, but it is not therefore to be supposed that punishment by the state is in any way a continuation of private vengeance. It is the essence of the former to suppress and supersede the latter, but it only does so gradually, just as rights in actuality are only formed gradually. Private vengeance belongs to the state of things in which rights are not as yet actualised; in the sense that the powers which it is for the social good that a man should be allowed to exercise, are not yet secured to him by society. In proportion as they are actualised, the exercise of private vengeance must cease. A right of private vengeance is an impossibility; for, just so far as the vengeance is private, the individual in executing it is exercising a power not derived from society nor regulated by reference to social good, and such a power is not a right. Hence the view commonly taken by writers of the seventeenth and eighteenth centuries implies an entire misconception of the nature of a right; the view, viz., that there first existed rights of self-defence and self-vindication on the part of individuals in a state of nature, and that these came to be devolved on a power representing all individuals, so that the state's right of using force against those men who use or threaten force against other men, is merely the sum or equivalent of the private rights which individuals would severally possess if there were no public equivalent for them. This is to suppose that to have been a right which in truth, under the supposed conditions, would merely have been animal impulse and power, and public right (which is a pleonasm, for all right is public) to have resulted from the combination of these animal impulses and powers: it is to suppose that from a state of things in which 'homo homini lupus' by mere combination of wolfish impulses, there could result the state of things in which 'homo homini deus.'
179. In a state of things in which private vengeance for hurt inflicted was the universal practice, there could be no rights at all. In the most primitive society in which rights can exist, it must at least within the limits of the family be suppressed by that authority of the family or its head which first constitutes rights. In such a society it is only on the members of another family that a man may retaliate at pleasure a wrong done to him, and then the vengeance is not, strictly speaking, taken by individual upon individual, though individuals may be severally the agent and patient of it, but by family upon family. Just because there is as yet no idea of a state independent of ties of birth, much less of a universal society from relation to which a man derives rights, there is no idea of rights attaching to him as a citizen or as a man, but only as a member of a family. That social right, which is at once a right of society over the individual, and a right which society communicates and secures to the individual, appears, so far, only as a control exercised by the family over its members in their dealings with each other, as an authorisation which it gives them in prosecuting their quarrels with members of another family, and at the same time to a certain extent as a limitation on the manner in which feuds between families may be carried on, a limitation generally dependent on some religious authority equally recognised by the families at feud.
180. From this state of things it is a long step to the régime of law in a duly constituted state. Under it the arm of the state alone is the organ through which force may be exercised on the individual; the individual is prohibited from averting violence by violence, except so far as is necessary for the immediate protection of life, and altogether from avenging wrong done to him, on the understanding that the society, of which he is an organ and from which he derives his rights, being injured in every injury to him, duly protects him against injury, and when it fails to prevent such injury from being done, inflicts such punishment on the offender as is necessary for future protection. But the process from the one state of things to the other, though a long one, consists in the further development of that social right [1] which properly speaking was the only right the individual ever had, and from the first, or ever since a permanent family tie existed, was present as a qualifying and restraining element in the exercise of private vengeance so far as that exercise partook at all in the nature of a right. The process is not a continuance of private vengeance under altered forms, but a gradual suppression of it by the fuller realisation of the higher principle which all along controlled it.
[1] 'Social right,' i.e. right belonging to a society of persons recognising a common good, and belonging through membership of the society to the several persons constituting it. The society to which the right belongs, is in principle or possibility a society of all men as rendered capable of free intercourse with each other by the organisation of the state. Actually at first it is only this or that family; then some association of families; finally the state, as including all other forms of association, reconciling the rights which arise out of them, and thus the most perfect medium through which the individual can contribute to the good of mankind and mankind to his.
181. But it will be asked, how upon this view of the nature of punishment as inflicted by the state it can be considered retributory. If no private vengeance, no vengeance of the injured individual, is involved in punishment, there can be no vengeance in it at all. The conception of vengeance is quite inappropriate to the action of society or the state on the criminal. The state cannot be supposed capable of vindictive passion. Nor, if the essence of crime is a wrong done to society, does it admit of retaliation upon the person committing it. A hurt done to an individual can be requited by the infliction of a like hurt upon the person who has done it; but no equivalent of wrong done to society can be paid back to the doer of it.
182. It is true that there is such a thing as a national desire for revenge [1] (France and Germany): and, if a state = a nation organised in a certain way, why should it not be 'capable of vindictive passion'? No doubt there is a unity of feeling among the members of a nation which makes them feel any loss of strength, real or apparent, sustained by the nation in its corporate character, as a hurt or disgrace to themselves, which they instinctively desire to revenge. The corporate feeling is so strong that individuals feel themselves severally hurt in the supposed hurt of the nation. But when it is said that a crime is an offence against the state, it is not meant that the body of persons forming the nation feel any hurt in the sense in which the person robbed or wounded does, such a hurt as excites a natural desire for revenge. What is meant is that there is a violation of a system of rights which the nation has, no doubt, an interest in maintaining, but a purely social interest, quite different from the egoistic interest of the individual of which the desire for vengeance is a form. A nation is capable of vindictive feeling, but not so a nation as acting through the medium of a settled, impartial, general law for the maintenance of rights, and that is what we mean when we talk of the state as that against which crimes are committed and which punishes them.
[1] 'Happy shall he be that rewardeth thee as thou hast served us.'
183. It is true that when a crime of a certain sort, e.g. a cold-blooded murder, has been committed, a popular sympathy with the sufferer is excited, which expresses itself in the wish to 'serve out' the murderer. This has some resemblance to the desire for personal revenge, but is really quite different, because not egoistic. Indignation against wrong done to another has nothing in common with a desire to revenge a wrong done to oneself. It borrows the language of private revenge, just as the love of God borrows the language of sensuous affection. Such indignation is inseparable from the interest in social well-being, and along with it is the chief agent in the establishment and maintenance of legal punishment. Law indeed is necessarily general, while indignation is particular in its reference; and accordingly the treatment of any particular crime, so far as determined by law, cannot correspond with the indignation which the crime excites; but the law merely determines the general category under which the crime falls, and fixes certain limits to the punishment that may be inflicted under that category. Within those limits discretion is left to the judge as to the sentence that he passes, and his sentence is in part influenced by the sort of indignation which in the given state of public sentiment the crime is calculated to excite; though generally much more by his opinion as to the amount of terror required for the prevention of prevalent crime. Now what is it in punishment that this indignation demands? If not the sole foundation of public punishment, it is yet inseparable from that public interest, on which the system of rights, with the corresponding system of punishments protective of rights, depends. In whatever sense then this indignation demands retribution in punishment, in that sense retribution would seem to be a necessary element in punishment. It demands retribution in the sense of demanding that the criminal should have his due, should be dealt with according to his deserts, should be punished justly.
184. This is quite a different thing from an equivalence between the amount of suffering inflicted by the criminal and that which he sustains in punishment. The amount of suffering which is caused by any crime is really as incalculable as that which the criminal endures in punishment, whatever the punishment. It is only in the case of death for murder that there is any appearance of equivalence between the two sufferings, and in this case the appearance is quite superficial. The suffering involved in death depends almost entirely on the circumstances, which are absolutely different in the case of the murdered man and in that of the man executed for murder. When a man is imprisoned with hard labour for robbery, there is not even an appearance of equivalence of suffering between the crime and the punishment. In what then does the justice of a punishment, or its correspondence with the criminal's deserts consist? It will not do to say that these terms merely represent the result of an association of ideas between a crime and the penalty which we are accustomed to see inflicted on it; that society has come to attach certain penalties to certain actions as a result of the experience (1) of suffering and loss caused by those acts, and (2) of the kind of suffering of which the expectation will deter men from doing them; and that these penalties having become customary, the onlookers and the criminal himself, when one of them is inflicted, feel that he has got what was to be expected, and call it his due or desert or a just punishment. If this were the true account of the matter, there would be nothing to explain the difference between the emotion excited by the spectacle of a just punishment inflicted, or the demand that it should be inflicted, on the one side, and on the other that excited by the sight of physical suffering following according to the usual course of things upon a physical combination of circumstances, or the expectation that such suffering will follow. If it is said that the difference is explained by the fact that in the one case both the antecedent (the criminal act) and the consequent represent voluntary human agency, while in the other they do not, we reply, Just so, but for that reason the conception of a punishment as just differs wholly from any conception of it that could result either from its being customary, or from the infliction of such punishment having been commonly found a means for protecting us against hurt.