From: Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).
Author: Jonathan Dymond
Published: Harper & Brothers 1834 Philadelphia
OF THE PROPER ENDS OF PUNISHMENT.
WHY is a man who commits an offence punished for the act? Is it for his own advantage, or for that of others, or for both?—For both, and primarily for his own:1 which answer will perhaps the more readily recommend itself, if it can be shown that the good of others, that is, of the public, is best consulted by those systems of punishment which are most effectual in benefiting the offender himself.
When we recur to the precepts and the spirit of Christianity, we find that the one great pervading principle by which it requires us to regulate our conduct towards others is that of operative, practical good-will, that good-will which, if they be in suffering, will prompt us to alleviate the misery, if they be vicious, will prompt us to reclaim them from vice. That the misconduct of the individual exempts us from the obligation to regard this rule, it would be futile to imagine. It is by him that the exercise of benevolence is peculiarly needed. He is the morally sick, who needs the physician; and such a physician he, who by comparison is morally whole, should be. If we adopt the spirit of the declaration, “I came not to call the righteous but sinners to repentance,” we shall entertain no doubt that the reformation of offenders is the primary business of the Christian in devising punishments. There appears no reason why, in the case of public criminals, the spirit of the rule should not be acted upon,—“If a brother be overtaken in a fault restore such an one.” Among the Corinthians there was an individual who had committed a gross offence, such as is now punished by the law of England. Of this criminal Paul speaks in strong terms of reprobation in the first epistle. The effect proved to be good; and the offender having apparently become reformed, the Corinthians were directed, in the second epistle, to forgive and to comfort him.
When therefore a person has committed a crime, the great duty of those who in common with himself are candidates for the mercy of God, is to endeavour to meliorate and rectify the dispositions in which his crime originates; to subdue the vehemence of his passions,—to raise up in his mind a power that may counteract the power of future temptation. We should feel towards these mentally diseased, as we feel towards the physical sufferer,—compassion; and the great object should be to cure the disease. No doubt in endeavouring this object severe remedies must often be employed. It is just what we should expect; and the remedies will probably be severe in proportion to the inveteracy and malignity of the complaint. But still the end should never be forgotten, and I think a just estimate of our moral obligations will lead us to regard the attainment of that end as paramount to every other.
There is one great practical advantage in directing the attention especially to this moral cure, which is this, that if it be successful it prevents the offender from offending again. It is well known that the proportion of those who, having once suffered the stated punishment, again transgress the laws and are again convicted, is great. But to whatever extent reformation was attained, this unhappy result would be prevented.
The second object of punishment, that of example, appears to be recognised u right by Christianity when it says that the magistrate is a “terror” to bad men; and when it admonishes such to be “afraid” of his power. There can be no reason for speaking of punishment as a terror, unless it were right to adopt such punishments as would deter. In the private discipline of the church the same idea is kept in view:—“Them that sin rebuke before all, that others also may fear.”2 The parallel of physical disease may also still hold. The offender is a member of the social body; and the physician who endeavours to remove a local disease always acts with a reference to the health of the system.
In stating reformation as the first object, we also conclude, that if, is any case, the attainment of reformation and the exhibition of example should be found to be incompatible, the former is to be preferred. I say if; for it is by no means certain that such cases will ever arise. The measures which are necessary to reformation must operate as example; and in general, since the reformation of the more hardened offenders is not to be expected except by severe measures, the influence of terror in endeavouring reformation will increase with the malignity of the crime. This is just what we need, and what the penal legislator is so solicitous to secure. The point for the exercise of wisdom is, to attain the second object in attaining the first. A primary regard to the first object is compatible with many modifications of punishment in order more effectually to attain the second. If there are two measures of which both tend alike to reformation, and one tends most to operate as example, that one should unquestionably be preferred.
There is a third object which, though subordinate to the others, might perhaps still obtain greater notice from the legislator than it is wont to do,—restitution or compensation.3 Since what are called criminal actions are commonly injuries committed by one man upon another, it appears to be a very obvious dictate of reason that the injury should be repaired;—that he from whom the thief steals a purse should regain its value; that he who is injured in his person or otherwise should receive such compensation as he may. When my house is broken into and a hundred pounds worth of property is carried off, it is but an imperfect satisfaction to me that the robber will be punished. I ought to recover the value of my property. The magistrate, in taking care or the general, should take care of the individual weal. The laws of England do now award compensation in damages for some injuries. This is a recognition or the principle; although it is remarkable, not only that the number or offences which are thus punished is small, but that they are frequently of a sort in which pecuniary loss has not been sustained by the injured party.
I do not imagine that in the present state of penal law or of the administration of justice, a general regard to compensation is practicable, but this does not prove that it ought not to be regarded. If in an improved state of penal affairs it should be found practicable to oblige offenders to recompense by their labour those who had suffered by their crime, this advantage would attend,—that while it would probably involve considerable punishment, it would approve itself to the offender’s mind as the demand of reason and of justice. This is no trifling consideration; for in every species of coercion and punishment, public or domestic, it is of consequence that the punished party should feel the justice and propriety of the measures which are adopted.
The writer of these essays would be among the last to reprobate a strict adherence to abstract principles, as such; but some men, in their zeal for such principles, have proposed strange doctrines upon the subject of punishment. It has been said that when a crime has been committed it cannot be recalled, that it is a “past and irrevocable action” aid that to inflict pain upon the criminal because he has committed it, “is one of the wildest conceptions of untutored barbarism.” No one perhaps would affirm that, in strictness, such a motive to punishment is right; but how, when an offence is committed, can you separate the objects of punishment so as not practically to punish because the man has offended? If you regulate the punishment by its legitimate objects, you punish because the offender needs it; and as all offenders do need it, you punish all;—which amounts in practice to nearly the same thing as punishing because they have committed a crime. However, as an abstract principle there might be little occasion to dispute about it; but when it is made a foundation for such doctrine as the following, it is needful to recall the supreme authority of the moral law. “We are bound, under certain urgent circumstances, to deprive the offender of the liberty he has abused. Further than this, no circumstance can authorize us. The infliction of further evil, when his power to injure is removed, is the wild and unauthorized dictate of vengeance and rage.” This is affirmative; and in turn I would affirm that it is the sober and. authorized dictate of justice and good-will. But indeed why may we even restrain him? Obviously for the sake of others;—and for the sake of others we may also do more. Besides, this philosophy leaves the offender’s reformation out of the question. If he is so wicked that you are obliged to confine him lest he should commit violence again, he is so wicked that you are obliged to confine him for his own good. And in reality the writer himself had just before virtually disproved his own position:—“Whatever gentleness,” he says, “the intellectual physician may display, it is not to be believed that men can part with rooted habits of injustice and vice without the sensation of considerable pain.”4 But, to occasion this pain in order to make them part with vicious habits is to do something “further” than to take away liberty.
Respecting the relative utility of different modes of punishment and of prison discipline, we have little to say, partly because the practical recognition of reformation as a primary object affords good security for the adoption of judicious measures, and partly because these topics have already obtained much of the public attention. One suggestion may however be made, that as good consequences have followed from making a prisoner’s confinement depend for its duration on his conduct, so that if it be exemplary the period is diminished,—there appears no sufficient reason why the parallel system should not be adopted of increasing the original sentence if his conduct continue vicious. There is no breach of reason or of justice in this. For the reasonable object of punishment is to attain certain ends, and if by the original sentence it is found that these ends are not attained, reason appears to dictate that stronger motives should be employed. It cannot surely be less reasonable to add to a culprit’s penalty if his conduct be bad, than to deduct from it if it be good. For a sentence should not be considered as a propitiation of the law, nor when it is inflicted should it be considered, as of necessity, that all is done. The sentence which the law pronounces is a general rule,—good perhaps as a general rule, but sometimes inadequate to its end. And the utility of retaining the power of adding to a penalty is the same in kind and probably greater in degree than the power of diminishing it. In one case the culprit is influenced by hope and in the other by fear. Fear is the more powerful agent upon some men’s minds, and hope upon others. And as to the justice of such an institution, it appears easily to be vindicated: for what is the standard of justice? The sentence of the law? No: for if it were it would be unjust to abate of it as well as to add. Is it the original crime of the offender? No: for if it were, the same crime, by whatever variety of conduct it was afterward followed, must always receive an equal penalty. The standard of justice is to be estimated by the ends for which punishments are inflicted. Now although it would be too much to affirm that any penalty or duration of penalty would be just until these ends were attained, yet surely it is not unjust to endeavour their attainment by some additions to an original penalty when they cannot be attained without.
1 “The end of all correction is either the amendment of wicked men or to prevent the influence of ill example.” This is the rule of Seneca; and by mentioning amendment first, he appears to have regarded it as the primary object.
2 1 Tim. v. 20.
3 “The law of nature commands that reparation be made.” Mor. and Pol. Phil. b.6, c.8. And this dictate of nature appears to have been recognised in the Mosaic law, in which compensation to the suffering party is expressly required.
4 Godwin: Inq. Pol. Just. v.ii. p.748, 751.
All Sub-Works of Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).:
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- Preface to the American Edition.
- Introductory Notices.
- Moral Obligations.
- Standard of Right and Wrong.
- Subordinate Standards of Right and Wrong.
- Standard of Right and Wrong Footnotes.
- Collateral Observations.
- Immediate Communication of the Will of God.
- Immediate Communication of the Will of God Footnotes.