Page:Mind (New Series) Volume 15.djvu/422

408 CRITICAL NOTICES: purposes of daily life, we must continue to regard punishment as primarily retributive, secondarily deterrent, and tertiarily, and in much lower degree, reformatory ". The author thus turns aside from the inquiry into what ought to be the aim of punishment and is content to conclude that what "is" "must be," on the ground ' that it is necessary to take human nature as it is and as it is likely to be for the next few generations. This surely is a very unsatisfactory opening to an inquiry into "Whom ought we to punish?" The doctrine that whatever is. is right may be defensible, but one hardly expects to find it adopted by the inquirer into what ought to be. To say that human nature does not change rapidly is true but profoundly misleading. Its innate dispositions may change but very slowly, yet the opinion and feeling of the mass of men in regard to any topic may undergo radical changes and improvements in a very brief period, if the changes are urged with sufficient force and skill by those who enjoy prestige. All improvement of public opinion comes from the select few, and it is for writers upon such topics as punishment and criminal responsibility to improve public opinion, and not to- accept it as it is. Therefore, even if the author had made good his contention that the main aim of punishment is retribution, he would not be justified in concluding either that it ought to be so or that it must be so. But this contention he has not made good. He supports it in several fallacious deductive arguments by which he seeks to refute Benfcham's doctrine that punishment should aim primarily at determent. If determent, he says, is the primary aim, " the severest punishment should be visited upon those crimes which every one is under temptation to commit," but this is not the usual practice, therefore Bentham is wrong. But surely, ac- cording to Bentham's view, the punishment assigned to any offence should be severe, not in proportion to the number of people liable to temptation, but in proportion to the intensity of the temptation for those who experience it. Very many men are liable to the temptation to ride in first-class railway carriages with third-class tickets or to ride bicycles on footpaths, but a penalty of very moderate severity suffices to enable most of them to resist these temptations. Why, therefore, on Bentham's principles, make them capital offences ? Equally fallacious is the argument from the case of Jack the Eipper and from the secrecy of punishment of certain unnatural offences. Surely these latter cases afford the clearest examples of punishment primarily deterrent. If we include with these the crimes of infanticide and abortion, we have a class of severely punished crimes which, in many cases certainly, inflict no pain on others. How then can this class of crimes be brought into conformity with the author's contention that " a person is held responsible when the enlightened public opinion of his age and country demands that he shall be made to suffer in return for pain that he has inflicted " ? On the other hand if retribution, the desire to inflict pain on those who have pained others, is the main