on the solicitude for security as manifested in the punishment of transgressions of the state’s laws.

The last, and perhaps the most important, of the means adopted for preserving the security of the citizens, is the punishment of transgression of the State’s laws; and, in pursuance of the plan I proposed to myself, it now becomes me to apply to this also the fundamental principles we have already agreed on. Now the first question which presents itself here is this: what are the actions which the State can punish and brand as crimes? The answer readily suggests itself from what we have before observed. For as the State is not allowed to propose any other end to its activity than the security of its subjects, it may not impose restrictions on any other actions than those which run counter to this ultimate object. But it also follows as clearly that all such actions deserve a just measure of punishment. For (seeing that they disturb and destroy that which is most essential to human enjoyment as well as development) not only is their hurtfulness too serious, that we should not resist their influence by every means consistent with the end and accordant with morality, but it follows, further, from the principles of right, that every one must suffer the punishment so far to invade the province of his own right as the crime he has committed has penetrated into that of the other. But to punish actions, on the contrary, which relate to the agent only, or which are done with the consent of the person who is affected by them, is manifestly forbidden by the same principles that do not allow of their limitation; and hence none of the so-called carnal crimes (rape excepted), whether creating offence or not, attempted suicide, etc. ought to be punished, and even the taking away a man’s life with his own consent should be exempt from punishment, unless the dangerous abuse of this exemption should seem to necessitate a criminal law. Besides those laws which prohibit immediate violations of the rights of others, there are still others of a different kind which we have already partly discussed, and must now again consider. Since, however, with regard to the ultimate object we have prescribed to the State, these laws (although only mediately) conduce to the attainment of that design, State punishments can apply to these in so far as this punishment is not implied in the transgression itself; as, for instance, in the breach of the prohibition of fidei commissa, the invalidity of the dispositions follows as a consequence. This is the more necessary, as there would otherwise be an utter want of coercive means for securing due obedience to the laws. From these considerations on the cases to which punishment is to be applied, I shall now proceed to consider the measure in which it is to be inflicted. I believe it to be impossible in general reasoning, which has no absolute reference to any particular local circumstances, to prescribe its due measure even within ample limits, or to fix on the point beyond which it should never go. Punishments must be evils which deter and intimidate the criminals. Now, their degrees must be as infinitely varying as the difference of physical and moral feeling, according to the difference of the zones and ages. That which may be justly called cruelty in one case may be positively demanded by necessity in another. Thus much alone is certain, that, the same efficiency being preserved, the system of punishment becomes more perfect in proportion as it becomes more mild. For not only are mild punishments lesser evils of themselves, but they lead men away from crime in a way the more worthy of human nature. For the less bodily painful and terrible they are, the more do they become so in a moral point of view; while excessive physical suffering tends to lessen the sense of shame in the sufferer himself, and, in the spectator, that of indignation and censure. And from this we see that mild punishments might be much more frequently employed than at first sight would seem possible; since they gain, on the other hand, a compensating moral weight and efficiency in proportion to their mildness. The efficiency of punishments depends entirely on the impression they make respectively on the soul of the criminal; and we might almost affirm that, in a regularly graduated series, it would be indifferent where we might determine to pause as at the highest degree, since the actual efficiency of a punishment does not so much depend on its absolute nature, as on the relative place it occupies on the scale of punishments, and since that which the State declares to be the highest punishment is readily acknowledged to be such. I say we might almost affirm; for this assertion would only hold good when the punishments inflicted by the State were the only evils to be dreaded by the citizen. But so far is this from being the case, that often it is real evils which urge him actually to the commission of crime; and hence the measure of the highest punishment, and therefore of the punishments in general, intended to counteract these evils, must be determined with reference to them as well. Now, where the citizen enjoys such ample freedom as that which these pages advise, he will live in greater comfort, his soul will become more calm and composed, his imagination more beautiful, and punishment will admit of much relaxation in severity, while it loses none of its real force and efficiency. So true it is that all things good and beneficent in themselves are so blended together in a wonderful harmony, that it is only necessary to introduce one of these elements, to realize the blessed influences which flow from all the others. The general conclusion, then, to be derived on this point I take to be this, that the highest punishment should be that which is the mildest possible, under existing local circumstances.

There is but one kind of punishment, I think, which should be wholly excluded, and that is the loss of honour, the brand of infamy. For a man’s honour and the good opinion of his fellow-citizens, is something which lies wholly beyond the reach of the political power. At most, then, such a punishment must be reduced to this: that the State may deprive the criminal of the characteristic signs of its own esteem and confidence, and leave to others the option of doing this with impunity. However unquestionable its claim to such a right may be, and however duty may seem to demand its employing it, I nevertheless cannot but consider the general declaration of its intention to avail itself of such a privilege, as by no means advisable. For, firstly, it presupposes in the person punished in such a way, a certain persistency in wrong which is but rarely found in actual experience; and, secondly, even in its mildest expression (or if it went no further than to declare a just want of confidence on the part of the State), it is always too indefinite not to create much abuse, and, if merely for consistency’s sake, would often embrace more cases than might really be necessary. For the kinds of confidence that may be extended to a man are, according to different cases, so infinitely manifold in their nature, that I hardly know of any crime which would shut out the criminal from the whole of these at once. But there is always a general expression of mistrust in such cases, and the man of whom it would be remembered only on parallel occasions that he had transgressed any particular law, carries about with him at all times an air of suspicion. Now, how hard such a punishment must be, we know from the feeling so common to all, that without the confidence of one’s fellow-men life itself ceases to be desirable. Moreover, many other difficulties present themselves when we look more closely at the way in which such a punishment shall be applied. Mistrust of honesty will always follow where the want of it has been manifested. Now, to what an infinity of cases such a punishment would have to be extended requires nothing to show. No less difficult is the question, as to how long the punishment shall last. Every justly-thinking man would undoubtedly wish to confine its operation to a certain period. But will the judge be able to contrive that one who has so long borne the load of his fellow-citizens’ mistrust, may at once regain their confidence on the expiration of a certain day? Lastly, it does not agree with the principles which run through this essay, that the State should give a definite direction to the opinions of the citizens in any way whatever. According to my views, therefore, it would seem well for the State to confine itself to the exercise of this its incumbent duty, viz. to secure the citizens against persons open to suspicion; and hence, wherever such a step is necessary,—as, for instance, in official appointments, the acceptance of the testimony of witnesses as trustworthy, the approval of guardians, etc.,—to exclude those persons, by laws expressly enacted, who had committed certain crimes or subjected themselves to certain punishments: beyond this, the State should refrain from any general manifestation of mistrust or any deprivation of honour. In this case also it would be very easy to fix on some time beyond which such objections should cease to operate. For the rest, it is needless to show that the State always retains the right of acting on the sense of honour by degrading punishments. Neither is it necessary for me to repeat (now that I am treating of the general nature of punishments) that no punishment whatever must be inflicted which would extend beyond the person of the criminal to his children or relations. Justice and equity alike proclaim against such a course; and even the cautious expression observed in the otherwise excellent Prussian code, where such a punishment occurs, is not sufficient to lessen the severity necessarily inherent in the thing itself.1

Since the absolute measure of punishment does not admit of any general determination, this is, on the other hand, so much the more necessary as regards its relative degree. That is, it becomes us to ascertain what the standard should be, according to which the degree of punishment attaching to different crimes should be determined. Now, it seems to follow as a consequence of the principles we have developed, that this standard can be no other than what is suggested by the degree of disregard for others’ rights manifested in the crime; and this degree (in so far as we are not referring to the application of any penal law to an individual criminal, but to the general apportionment of punishment) must be decided according to the nature of the right which is violated by the crime. It seems, indeed, to be the simplest method of determining this, to judge according to the degree of difficulty or facility of opposing the incentives to the crime in question; so that the amount of punishment should be estimated according to the number of motives which urged or deterred the criminal. But when this principle is rightly understood, we find it to be identical with the one we have just laid down. For in a well-organized State, where there is nothing in the constitution itself which is calculated to incite men to the commission of crime, there cannot properly be any other cause for criminal transgression than this very disregard for others’ rights, which the impulses, inclinations, and passions prompting to crime make use of. But if this principle be otherwise interpreted; if it is supposed that severe punishments should always be opposed to crimes in proportion as circumstances of time and locality render them more frequent, or, still more (as in the case of so many police crimes), in proportion as, from their very nature, they are less impressively resisted by moral reasons, then the scale would be at once unjust and hurtful.

It would be unjust. For as it is exact to suppose the prevention of future injuries to be the end of all punishment,—at least in so far as never to allow a punishment to be inflicted with any other design,—so the necessity for the punished one to undergo the punishment arises strictly from this, that every one must submit to infringement of his own rights exactly in that proportion in which he has violated the rights of others. Not only without the political union, but also within it, does the obligation rest on this position. For to derive it from a mutual contract is not only useless, but is also attended with this difficulty,—that capital punishment, for example, which is clearly necessary at some times and in certain local circumstances, could not be justified with such a supposition, and that every criminal could escape his punishment if before undergoing it he separated himself from the social contract; as we see, for instance, in the voluntary exile of the ancient republics, which however, if my memory does not mislead me, was only admitted in cases of political and not private crimes. To him, therefore, who has inflicted the injury, no discussion as regards the efficiency of the punishment can be allowed; and, however certain that the party injured would have no new injury to apprehend from him, he must still acknowledge the justice of the punishment. But it follows also, on the other hand, from this same principle, that he may justly resist every punishment exceeding the measure of his crime, however certain it might be that this punishment alone, and no milder one whatever, would be efficacious. There is manifestly an intimate connection in human ideas between the internal feeling of right and the enjoyment of external happiness, and the former seems to man to entitle him to the latter. Whether this expectation is justified by the happiness which fate accords him, is a more doubtful question, but cannot be discussed in this place. But with respect to that enjoyment which others can arbitrarily give or take away from him, his right to it must perforce be acknowledged, while however that principle seems de facto to deny it.

But, further, this scale is hurtful even to security itself. For although it may enforce obedience to this or that particular law, it disturbs and confuses precisely that which is the mainstay of the security of the citizens in a State, viz. the feeling of morality, in causing a struggle between the treatment a criminal meets with, and his own consciousness of his guilt. The only sure and infallible means of preventing crime is to secure a due regard to the rights of others; and this object is never gained unless every one who attacks those rights is in the same measure hindered in the exercise of his own. For it is only by such a correspondency that harmony is preserved between man’s internal moral development and the success of political arrangements, without which even the most artificial legislation will always fail in its end. How much the attainment of all other objects which man proposes to his endeavours, would suffer from the adoption of such a scale as that to which we referred—how much it contradicts all the principles laid down in this essay, it is needless for me to show. Again, the equality or correspondency between crime and punishment which is demanded by the reasons we have developed, cannot be absolutely determined; we cannot decide in a general way that this or that crime is just deserving of this or that particular punishment. It is only in a series of crimes differing as to degree, that the means of securing this equality can be described; and in this case the respective punishments must be arranged in corresponding gradations. When, therefore, according to what we before observed, the absolute measure of punishment (for instance, of the highest punishment) is to be determined according to the amount of evil done, and that which is required to prevent the future commission of the crime, the relative measure of the others (when the highest, or indeed any, punishment has once been fixed) must be determined according to the degree in which the respective crimes are greater or less than that which it was designed to prevent by the first punishment decided on. The most severe punishments, therefore, should be allotted to those crimes which really infringe on the rights of others, and the milder ones to transgressions of those laws which are simply designed to prevent such infringements, however important and necessary those laws may be of themselves. By such a course the idea is at the same time banished from the minds of the citizens that they are treated arbitrarily by the State, and that its conduct towards them is not grounded on proper motives—a prejudice easily engendered where severe punishments are inflicted on actions which either really have only a remote influence on security, or whose connection with the latter is less easy to understand. Among the crimes first mentioned, those must be visited with the severest punishment which attack directly the rights of the State itself; since he who shows no regard for the rights of the State, shows that he does not respect those of his fellow-citizens, whose security depends upon the integrity of the former.

When crimes and punishments are thus generally apportioned by the law, the penal enactments so determined must be applied to single crimes. With regard to this application, the strict principles of right decide that the punishment can only affect the criminal in the degree of design or guilt implied in the action he has committed. But when it is agreed to follow out the exact principle before stated,—that in all cases the disregard manifested for the rights of others, and this only, is to be punished,—it must also be applied to single specified crimes. As regards every crime committed, therefore, the judge must endeavour to inquire carefully into the design of the criminal, and must have the legal power secured to him, of still modifying the general punishment according to the particular degree in which the criminal has disregarded the right violated.

The proceedings with regard to the criminal, moreover, are as clearly prescribed by the general principles of right, as in the way we have before adopted. That is, the judge must avail himself of all rightful means for discovering the truth, but must refrain from making use of any which lie beyond the boundary of legitimate right. He must therefore draw a careful distinction between the citizen who is only suspected, and the criminal who is actually convicted, never treating the former like the latter; and, in fine, must never deprive even the convicted criminal of the enjoyment of his rights as a man and as a citizen, since he cannot lose the former but with his life, and the latter only by a legal, judicial exclusion from the political union. The use of such means, therefore, as imply actual deceit, should be as unlawful for this purpose as the employment of torture. For although it might perhaps be urged, in excuse, that the suspected person, or at least the criminal, authorized such a course by the character of his own actions, it is still wholly unbecoming the dignity of the State, which is represented by the judge; and as to the salutary effects of an open and straightforward conduct even towards the criminals, it is not only evident of itself, but also in the experience of those States (England, for example) which enjoy in this respect a noble and high-minded legislature.

It becomes necessary to examine, in the last place (now that we are treating of criminal law), a question that has assumed a high degree of importance by the efforts of modern legislation; the question, namely, as to how far the State is entitled or obliged to prevent crimes uncommitted. There is perhaps no public project which is animated by such a philanthropic design, and the sympathy which it inspires in every man of feeling is somewhat dangerous to the impartiality of the inquiry. Nevertheless, I cannot but consider such an inquiry especially necessary, since, if we consider the infinite variety of internal impulses from which the design of committing crime may proceed, it seems to me impossible to devise any method of wholly preventing such designs, and not only this, but actually hazardous to freedom, to prevent their execution. As I have already endeavoured to define the right of the State to limit the actions of individual men, I might seem to have already furnished an answer to this question. But when I found reason to determine, in that part of my inquiry, that the State should restrict those actions whose consequences might endanger the rights of others, I understood by these, (as the reasons I advanced in support of this position may show) such consequences as flow solely and of themselves from the action, and which might only be avoided perhaps by a greater amount of caution on the part of the agent. But when we speak of the prevention of crimes, we naturally mean the limitation of such actions only as give rise to a second, and that is, the commission of crime. Hence there is already this important difference, that the mind of the agent must here co-operate by a new decision; while in the former case it might either possess no influence whatever, or merely a negative one, by refraining from activity. This alone I trust will serve to show the limits with sufficient clearness.

Now all prevention of crime must be directed to its causes. But these causes, which are so infinitely varied, might be generally expressed perhaps as the feeling, not sufficiently resisted by reason, by the disproportion between the inclinations of the agent and the means in his power for gratifying them. Although it might be very difficult to determine it in detail, there would be, in general, two distinct cases of this disproportion; firstly, that in which it arises from a real excess of the inclinations, and, secondly, when it is a consequence of a deficiency of means even for an ordinary measure of inclination. Both cases however must be accompanied by a want of strong reasoning power and of moral feeling, which fails to prevent that disproportion from breaking out into illegal actions. Every effort of the State, then, to prevent crimes by suppressing their causes in the criminal, must, according to the difference noticed in these cases, be directed either towards changing and improving such positions of the citizens............