[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.