§1. We have now surveyed in outline the rights which, on the individualistic principle, should be secured by law to private members of the community, so far as they correspond to obligations imposed upon other private individuals. The main positive obligations, as we have seen, are (1) the duty to perform such engagements as have been deliberately made without constraint or culpable misrepresentation; and (2) the duty of parents to support and train children. The other obligations are chiefly negative---to abstain from personal constraint and from acts causing physical injury or serious discomfort to others; from interference with the exclusive use of certain portions of matter, and certain results of intellectual labour; and from certain sources of mental annoyance, especially defamation, and deception that results in mischief; also from interference with the rights involved in the institution of the family.
We have now to consider how the fulfilment of these obligations is to be secured, and how the mischiefs arising out of their non-fulfilment are to be remedied. We must bear in mind that, on the individualistic principle, strictly interpreted, Government is not concerned with the prevention or reparation of mischief, except so far as it is due, directly or indirectly, to the action of other men. It may be that, at a particular time and place, the forces of external nature---irruptions of floods or wild beasts, or flights of destructive insects---are more formidable sources of mischief than the malice or carelessness of men, and that complex and carefully arranged co-operation is required to guard against the evils which they tend to produce. But, according to the individualistic principle, it may be doubted whether this co-operation should be compulsory; whether any one should be compelled to join in protecting others from harm which he has not himself in some way positively contributed to cause, either by his own acts or by voluntary acceptance of the responsibilities resulting from other men's acts,---as for instance, by becoming owner of dangerous instruments, animate or inanimate. I shall hereafter argue that where the need of such organised co-operation is clear and urgent, the application of the individualistic principle may legitimately be extended to include its enforcement; but, at present, it seems best to confine our attention to governmental interference designed to prevent or remedy mischief manifestly caused by human action.
In considering this interference, we are met with a distinction commonly taken as fundamental between the two main functions into which the administration of law is divided, according to popular conception and received legal theory, viz. (1) the enforcement of damages due to the wronged individual; and (2) the infliction of punishment in the name of the community. According to my view, this distinction---though very important---is not so fundamental as it is commonly conceived to be: because I hold that both in determining when damages are due, and when punishments should be inflicted, for past mischief, the prevention of future mischief ought generally to be a paramount consideration. In order to justify this view, it will be well to begin by considering the meaning and extent of the distinction, as commonly conceived; and the different kinds of wrongs, or the different characteristics of wrongs, to which damages and punishment are respectively thought to be appropriate.
The popular view may be briefly expressed by saying that punishments are retributive and damages merely reparative. Punishments are thought to be the proper requital for acts that are not only harmful to others but immoral and blameworthy; whereas, in the case of such violations of rights as are not held morally blameworthy,---because they are either unintentional or may fairly be supposed to have been committed by persons who believed they had justice on their side,---all that is thought to be generally necessary is that the injury shall be repaired or compensated; that the person injured shall be restored to the condition in which he stood before the injurious action, or placed in a condition equivalent in respect of advantages. This distinction between retribution and reparation is, I think, clearly found in the common moral consciousness of the most advanced modern societies.
It should, indeed, be noted that at an earlier stage of social and intellectual development this distinction is obscure, or but faintly perceptible; the penal loss of an ``eye for an eye'', or of a ``tooth for a tooth'', was commonly regarded as a kind of reparation to the person originally maimed. And even at the present day in England, some writers, influenced by Bentham, speak of the ``vindictive satisfaction'' that punishment gives to the individual injured, as an important element of its utility. Thus Sir J. Fitzjames Stephen says that " the benefits which criminal law produces are twofold. In the first place, it prevents crime by terror; in the second place, it regulates, sanctions, and provides a legitimate satisfaction for the passion of revenge; the criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.'' I think, however, that this statement goes further in legitimating the passion of revenge than the common moral sense of the present age and country can follow. I admit that this impulse gives valuable aid to the effective administration of criminal justice among human beings as actually constituted; and that if we could suppress the passion of revenge without effecting any other change in the moral nature of average men, we should do more harm than good. Nor, again, do I deny that the moral or quasi-moral demand for retribution on a wrongdoer, as felt not by the person primarily wronged but by other members of the community in which the wrong has been done, is a sentiment that may be traced back to the desire of personal revenge as one, at least, of the roots out of which it springs. But I hold that the two impulses have now become completely distinct; though we now commonly think that morality requires that a crime should be punished, we yet think that the satisfaction which the person injured derives from this punishment has a certain taint of immorality. If it is asking too much of human nature to prescribe a rigid exclusion of such malevolent pleasure, at any rate we think that it ought not to be cherished and dwelt upon, and made a conscious object of pursuit.
We may take it, then, that Retribution on the wrongdoer, as demanded by the common sentiment of justice in civilised mankind, here and now, is altogether distinct from the Reparation which the same sense of justice also recognises as due to. the person wronged. But when the two notions are separated, it must be plain that the popular view which regards such retribution as an end in itself, independently of its useful consequences in preventing future mischief, is strictly incompatible with the fundamental principle of Utilitarianism, assumed throughout the present discussion. From a utilitarian point of view, the pain caused by punishment to the person punished is of course to be regarded as an evil only admissible in order to prevent worse evil.
No doubt the impulse to inflict harm, in the name of justice, on persons who have intentionally done mischief, is a practically useful element of the general moral disapprobation caused by such acts, and a most powerful auxiliary to the legal punishment by which government seeks to repress crimes. As Sir J. Stephen forcibly says: ``Some men, probably, abstain from murder because they fear that if they committed murder they would be hung. Hundreds of thousands abstain from it because they regard it with horror. One great reason why they regard it with horror is, that murderers are hung with the hearty approbation of all reasonable men. Men are so constituted that the energy of their moral sentiments is greatly increased by the fact that they are embodied in a concrete form … It is this secondary effect of criminal law which makes it important that law and morals should harmonise as far as possible, so that the one shall gratify the sentiments which the other excites.'' But while this harmony between the moral and the legal repression of wrongs is a most important advantage, which the legislature should always keep in view, it is none the less necessary to recognise that it cannot be completely attained. Mischievous acts, requiring severe repression on the part of government, are continually done, not merely from amiable motives but with excellent intentions. The sincerest religion, the most ardent patriotism, have occasionally prompted men to homicide of the most dangerous kind; and probably not a few well-intentioned persons have at various times thought with Godwin that ``if I have had particular opportunity to observe any man's vices … there may be very sufficient grounds for my representing him as a vicious man'' in order to ``warn those whom his errors might injure'', even though ``I may be wholly unable to demonstrate his vices''; and have thus from mere virtuous indignation and philanthropy incurred the legal punishment of libel. In such cases, though there may be a general sense that punishment is necessary, it is not demanded as a proper retribution on the ill-desert of the agent. Hence we cannot define the species of wrongs which ought to be repressed by punishment as wrongs inflicted with an immoral intention; since, though this characteristic is present in the great majority of acts that ought to be punished, it is clearly not present in all.
I conclude, then, that from a political point of view, it is evidently necessary to take as the primary end of punishment the prevent-ion of mischief and not the retribution of wickedness: and to decide on this principle any doubtful questions as to the allotment of punishments.
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