On

injuries. A clear distinction between the procedures belonging to the two kinds of remedies respectively is a necessary element of a civilised system of law. For where it is an adequate means of preventing wrongs to fix the burden of reparation on the wrongdoer, there is no absolute necessity for any intervention of government: the required reparation may as well be made privately between the parties, so that it may properly be left to the option of the individual wronged to invoke the aid of government if necessary. the other hand, where punishment-as distinct from reparation is needed in the interest of the community at large, it must be the business of government to secure that it shall be inflicted whenever it is deserved to secure, therefore, that persons harmed by the crime shall come forward and give evidence, and shall not make peace with the criminal. And to attain this result, it is found more and more necessary, as civilisation advances, that government should make the prosecution of crimes its own business. Thus, though the ultimate end of both civil and criminal procedure is to a great extent the same-prevention of mischiefthe regulations of the two systems are necessarily different; and historically they have shown a marked tendency to diverge more and more.

On this subject I shall have something more to say in the part of my treatise that deals with the structure of government. At present I shall confine myself to a brief discussion of the kinds and amounts of reparation that lawcourts should enforce, and the kinds and degrees of punishment that they should inflict.

§ 3. First, as regards reparation. In the case of violations of the right of property, restitution in kind, where possible, and-along with or instead of this-an equivalent in money for the utilities of which the proprietor has been wholly or partially deprived, are the most obvious modes of compensation, and capable in most cases of being made adequate: nor does there seem to be any other available mode of making reparation for physical injuries to the person, though the adequacy of a money payment is in

this case much more doubtful. Where, however, it is the right to reputation that has been violated, the mischief done can be to a certain extent-though in many cases not completely repaired by a public contradiction of the defamatory statement that caused it; and where such a contradiction is voluntarily made by the defamer the Courts should recognise it as at least a part of the compensation that it is their business to enforce. But such a contradiction could not be made compulsory, and its refusal criminal, without danger of forcing the defamer to say what he did not believe to be true nor is there any necessity for such compulsion, since, if the defamer refuses to retract his defamatory statement, the end in view can be sufficiently attained by the publication of the Judge's decision that the statement was false.

The most difficult case is that of injuries to reputation, which result not from false statements, but from insults which, according to the common sentiment of civilised Europe-or of the gentry in European countries-it is discreditable to endure tamely. So long as this sentiment -a survival from more disorderly times-continues strong, it is probably impossible to find any mode of completely repairing the injury done to reputation by such insults; but probably the closest attainable approximation to reparation is to be got by inflicting a humiliating punishment, having some similarity to the insult. This suggestion is worked out in detail by Bentham; and though several of the humiliations that he proposes are too grotesque to be adopted, the need that they are designed to meet is still a real one; and in many cases it would, I think, be possible to find expedients for meeting it, which should not be grotesque or otherwise undignified.1

For the injury done to a woman's husband, father, or 1 See Bentham's Principles of Penal Law, ch. xv. (Works, vol. i. p. 381). Among other too grotesque suggestions, I may notice that of "emblematical robes," or "masks," with "a magpie's or a parrot's head in cases of temerity"! On the other hand, I see no reason why a verbal insult should not entail "speech of humiliation prescribed to the offender," or even, if this did not suffice, a humiliating posture.

other relatives by her seduction, I know of no appropriate reparation; and, so far as it is desirable that this mischief should be legally repressed, I think it is a case for punishment rather than damages.

Where the injury for which reparation is due has not been provoked or in any degree caused by culpable acts or omissions on the part of the person injured, the proper amount of pecuniary compensation is, in the abstract, not difficult to determine: it should be an equivalent not merely for the original injury, but for the sacrifices entailed by the process of obtaining reparation. When, on the other hand, the person injured is partly to blame, it is obviously reasonable that the compensation should be diminished by an amount proportioned to his share in causing the injury: though it may often be impossible to determine the diminution otherwise than very roughly.

I may observe that the question of reparation is important not only to the individual wronged, but also to others: since, if reparation can be made adequate, the expectation of obtaining it very much reduces the alarm caused by the offence. Hence the special importance of preventing by effective punishment irreparable wrongs.

§ 4. Let us now pass from the consideration of Damages to that of Punishment in the narrower sense. In selecting the kind of punishment, the first point to notice is, that though punishment mainly prevents wrong by deterring—and this is its sole preventive operation so far as it acts on others than the person punished-still, so far as the criminal is concerned, there are two other modes of prevention of which we must not lose sight: viz. Reformation and Disablement. It is therefore desirable, so far as possible, that the kind of punishment should be selected with a view to these important though subordinate ends.

Reformation is especially to be aimed at in the case of juvenile offenders, disablement in the case of offences committed by influential persons in transient crises of civil strife. For both these ends imprisonment is the obvious means; for the former, imprisonment with labour, care being

taken not to render the labour needlessly repulsive, and to allow industry to obtain its natural reward.

It is a difficult matter to determine satisfactorily the right degree of punishment for any given offence. It is easy to say, with Bentham, that it ought to be sufficient to deter, and not more than sufficient. But our general knowledge of the variations in human circumstances and impulses would lead us to conclude what specific experience amply confirms-that no punishment whatever can be relied on to be adequately deterrent in all cases. Murder and manslaughter, burglary and larceny, have continued to harass society through all changes in the allotment of punishment; and no change is likely to put an end to them. Now, impulsive crimes we cannot hope to prevent by any intensification of punishment until human nature is fundamentally altered: but crimes planned in cold blood are matters of calculation, and it does not seem impossible that it should be made unmistakably a man's interest, on a cool calculation of chances, not to commit a crime. Since, however, the attainment of this result depends not only on the amount of punishment, but also on the chances that the criminal (1) will be caught, and (2) will be condemned if caught, it may easily happen that in a community where the police is ill organised, and the judges corrupt or inefficient, the required adjustment of interests cannot be effected: the uncertain chance of the maximum punishment which humanity admits may not be enough to outweigh the prospective profit of the crime. For the same reason, in societies where similar governmental defects exist in a less degree, an increase in the efficiency of police and judicature will often enable intensity of punishment to be reduced without increasing crime.

The difficulty of adjusting amount of punishment to gravity of offence, in a manner adapted to meet all variations in human nature and its circumstances, affords a strong argument for increasing heavily the severity of punishment at each repetition of any kind of deliberate crime:1 since the

1 The force of this consideration may be neutralised in particular cases by special extenuating circumstances.

fact that a man, after suffering the punishment of an offence committed in cold blood, proceeds to commit another offence of the same kind, is tolerably conclusive evidence that in his particular case the punishment already inflicted was not sufficiently deterrent.

There are several other considerations that ought to be taken into account, in the selection and graduation of punishments of these the following appear to be the most important:

1. To realise the principle of justice that similar cases should be treated similarly, it is important that punishment should be equable; i.e., that a punishment of a certain denomination-say imprisonment-should not mean different things in different cases. This is an argument (e.g.) for central rather than local management of prisons for watchfulness as to effects on health, etc.

It is to be observed, however, that this principle is almost impossible to realise in dealing with offenders drawn from different classes in the community. We cannot, even by proportioning the sum imposed to the offender's income, so far as we can ascertain it, prevent punishment by fine from being practically less severe to the rich than to the poor; and it is still more clear that we cannot prevent imprisonment with labour from being more severe to the former. And perhaps, on the whole, it is not undesirable that the rich should suffer somewhat more, as crime may be presumed to be generally more culpable in persons of better education, and shielded by their wealth from the severe temptations incident to poverty.

2. Avoidance of excess in punishment is important, not only in order to inflict no more pain than is needed—which, of course, is to be aimed at from a utilitarian point of view -but even more in order that different degrees of punishment may all be adequately deterrent, where the criminal has choice of alternatives of crime, differing in degree of mischievousness. It is of fundamental importance that a man should always have adequate motive to refrain from committing each successive part of any possible complex offence, or a greater offence, instead of a lesser. Punish