PUNISHMENT, in the strict sense of the term, is a definite expression of public in dignation, at least conventional, if not genuinely moral. It always aims, at least, at expressing the indignation of the social group, and in this resides the fact that it is only externally similar to the earlier custom of revenge which, theoretically, is private. Public indignation, like non-moral resentment, or revenge, is a re actionary state of the group consciousness di rected toward the cause of inflicted pain or other injury. And even punishment is, as in the cases of blood-revenge, frequently in discriminate. In these cases punishment not infrequently falls on the relatives of the culprit. The nature of punishment necessarily involves suffering in the form of pain or loss of honor, place, power, liberty, property or even life. It implies forfeiture of what would otherwise have been admitted to be a right inhering in the sufferer, who suffers because he has per petrated a wrong. The common will is not, as Rousseau informs us, "the sum of the indi vidual wills?' The common will is the product of social life, and it is the will of establishing the solid foundations of peaceable interrelations among the members of a community. There be ing a stern necessity of social bonds under penalty of extinction to the whole community, the common will develops a most powerful tribal conscience demanding universal obedience to certain general rules called laws. All the citizens of a community may well be said to agree in this, that everybody regards himself as exempt; wherever there are laws all know there are some who will disobey them. The primary object of punishment is in every in-. stance to maintain or restore the common will or social order. Our legal system in all its parts, is a virtual confession of man's incapacity for individual self-government. is when a man can do as he pleases,* says Huxley, 'that his troubles be Statutory law is the will of a nation published in written and enduring form for the information of those subject to it. And yet after everything is done that can be done to instruct people as what the public good requires, we always find two classes.,
those who abide by the demands of the public will, and those who do not. How shall the state treat those who wilfully violate its statutes? What shall be done with those who are both mentally capable of understanding its demands and who are physically able to conform to them, but still act directly counter to their requirements? Such questions have been asked since man became a member of society: and the answer given was, punish them, or "cure" them. Such was the origin of punishment. The advocates of this treatment of public offenders saw its justification in many principles. Some saw in punishment a vindication of the law; others protection (which too often is inspired, how ever, by mere revenge and forgetful of the fact that two wrongs do not make a right) ; "ex ample" was the purpose of still others (but these not seldom revealed an inclination to ignore all sense of proportion, and the degree of guilt) ; a recent development is the idea of reformation. Of all the foregoing, the notion of making an example is perhaps the least worthy, being an (unconscious, it may be) ex pression of mere vindictiveness. It is alleged to be a deterrent theory. Could the infliction have any deterrent effect at all upon just people unless it was supposed that the person punished was receiving his actual deserts? Reflection will, we feel certain, teach anyone that punish ment out of all proportion to the degree of guilt would have just the opposite effect upon the just if they thought otherwise.
In every society the traditional notions as to what is right and wrong, obligatory or morally indifferent, are all too commonly accepted by the great majority without any further reflec tion. At their source not a few of these notions have their origin (sociology shows this) in sentimental likings and antipathies. The moral estimate all too frequently survives the cause from which it sprung; and no enlightened judge could fail to see that while this is so, the operation of "example" as a punitive principle would lead to flagrant injustice, for many times the moral estimates that come down to us from our fathers have no foundation in existing conditions.