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Page 54
Punishment is only a means say some; its real end is the reformation
of the offender. The practical application of such a principle would
lead to very astonishing results. It is perfectly well known that
there is no more incorrigible set of offenders than habitual vagrants
and drunkards. And on the other hand, the most easily reformed of all
offenders is often some person who has committed a serious crime under
circumstances which could not possibly recur. According to the theory
that reformation is the only end of punishment, petty offenders would
be shut up all their lives, while the perpetrator of a grave crime
would soon be set free. An absurd result of this kind is fatal to the
pretention that punishment is merely a means and not also an end.
Is it the end of punishment to act as a deterrent? We are often told
from the judicial bench that a man receives a certain sentence as a
warning and example to others. If such is the end of punishment it
lamentably fails in its purpose, for in a number of cases it neither
deters the offender nor the class from which the offender springs. It
was under the influence of this idea that criminals used to be hanged
in public, but experience failed to show that these ghastly
exhibitions had much deterrent effect on the community. Besides, it is
rather ridiculous to say, I do not punish you for the crime you have
committed, I punish you as a warning to others. In these circumstances
the effect of punishment is not to be upon the person punished, but
upon a third party who has not fallen into crime. Unless the
punishment is just in itself, society has no right to inflict it in
the hope of scaring others from criminal courses. Justice administered
in this spirit, turns the convicted offender into a whipping boy; the
punishment ceases to be related to the offence, and is merely related
to the effect it will have on a certain circle of spectators.
In our view, punishment ought to be regarded as at once an expiation
and a discipline, or, in other words, an expiatory discipline. This
definition includes all that is valuable in the theories just
reviewed, and excludes all that is imperfect in them. The criminal is
an offender against the fundamental order of society in somewhat the
same way as a disobedient child is an offender against the centre of
authority in the home or the school. The punishment inflicted on the
child may take the form of revenge, or it may take the form of
retribution, or it may take the form of deterrence, but it undoubtedly
takes its highest form when it combines expiation with discipline.
Punishment of this nature still remains punitive as it ought to do,
but it is at the same time a kind of punishment from which something
may be learned. It does not merely consist in inflicting pain,
although the presence of this element is essential to its efficacy; it
consists rather in inflicting pain in such a way as will tend to
discipline and reform the character. Such a conception of punishment
excludes the barbarous element of vengeance; it is based upon the
civilised ideas of justice and humanity, or rather upon the sentiment
of justice alone, for justice is never truly just except when its
tendency is also to humanise.
"Sine caritate justicia
Vindicationi similis."
From the theory of punishment let us now turn to its methods. The most
severe of these is the penalty of death. A great deal has been said
and written both for and against the retention of this form of
punishment. To set forth the arguments on both sides in a fair and
adequate manner would require a volume; it must, therefore, suffice to
say that in the field of controversy the contest between the opposing
parties is a fairly even one. In fact, looking at the matter from a
purely polemical point of view, the advocates of the death penalty
have probably the best of it. It has, however, to be remembered that
such questions are not solved by battalions of abstract arguments, but
by the slow, silent, invisible action of public sentiment. The way in
which this impalpable sentiment is moving on the question of the death
penalty may be seen, first, in the manner in which crime after crime
during the present century has been excluded from the supreme sentence
of the law, and secondly, in the steady diminution of capital
executions throughout the civilised world. If the present drift of
feeling continues for another generation or two it is not at all
improbable, in spite of temporary reactions here and there, that the
question of capital punishment will have solved itself.
Another form of punishment is transportation. As far as Great Britain
is concerned, transportation possesses only a historic interest. No
one is now sent out of the country for offences against the law.
Experience showed that penal colonies were a failure, and that the
truly criminal could be more effectively dealt with at home. Within
recent years the French have resorted to the system of transportation;
but, according to several eminent French authorities, the penal
settlement in New Caledonia is hardly justifying the anticipations of
its founders.
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