ment, therefore, should be so chosen that clearly greater punishments may be allotted to more mischievous crimes.

This is one argument for attaching capital punishment to murder alone: so that (e.g.) the thief or burglar may have an adequate inducement not to commit murder even when it would give him an additional chance of getting off.

3. From a utilitarian point of view, it is plain that, supposing the preventive effect of punishment undiminished, the less pain it actually gives to a criminal the better. Hence, it is an advantage that punishment should be, so far as possible, what Bentham calls "exemplary," i.e. greater. in appearance than in reality, since it is chiefly appearance that deters. And, of course, punishments of the opposite kind, really worse than they seem, should be carefully avoided.

But in seeking to make punishments "exemplary," care should be taken to prevent them from being offensive to popular feeling, and so likely to arouse aversion to the administration of the law, and dangerous sympathy with the criminal punished. Moreover, the infliction of pain. beyond a certain degree of severity would be opposed to a sentiment of humanity, which it is not merely politically dangerous to offend, but important to the wellbeing of society to maintain and develop.

4. Punishment should be as little as possible burdensome to the community: e.g. if useful labour is adequately deterrent its utility is so much gain: and, similarly, if the penalty suffered by the wrongdoer is at the same time compensatory to persons wronged. Indeed, as we have seen, so far as compensation can be adequate, the enforcement of it may be sufficiently preventive of the offence.

5. Finally, taking mistakes into account, it is well that punishment should be remissible if possible. This is, of course, an objection to capital punishment-though not, in my opinion, a decisive one; also to the infliction of lesser bodily injuries, such as maiming.

CHAPTER IX

PREVENTION OF MISCHIEF AND PATERNAL INTERFERENCE

§ 1. In the last chapter I was concerned with the distinction. between Punishments and Damages, and the distinctionwhich is usually conceived to correspond to this-between public offences and private or civil injuries. According to me, neither distinction in a well-organised system of remedies for wrongs would-though important-have quite the fundamental importance which it has in English law. For, from a utilitarian point of view, all punishment is preventive in its ultimate end, and not retributive; though it is desirable that, so far as possible, intentional acts that call for punishment should be regarded with moral disapprobation and aversion. And again, the infliction of damages must be mainly determined by considerations of prevention and not of reparation alone; since, generally speaking, damages should not be enforced for mischief done by A to B, unless the mischief could have been avoided by care which an average man can be made to take without material alarm or distraction from his ordinary avocations.

It seems to me better to say (1) that reparation as well as prevention should be the general aim of governmental interference in the judicial way; and (2) that in some cases the mere enforcement of reparation may be adequate for purposes of prevention.

I pointed out, further, that prevention was not only though mainly attained by the deterrent effect of punishment. This is its sole preventive effect on others: but as

regards the individual punished, prevention may also be attained by reformation and by disablement.

I then went on to consider briefly some of the leading characteristics of well-chosen punishments.

Punishments should be so chosen that a given denunciation of punishment shall, as far as possible, not mean very different actual degrees of severity in different cases. It should, if possible, be severe enough for the chance of it to outweigh clearly, on a cool calculation, the advantage of the crime capable of gradation, so that a criminal may always have adequate inducement to prefer the lesser offence to the greater not severer in reality than in appearance, since it is appearance that deters: as little burdensome as possible to all but the criminal, and so far as may be remissible.

In order to complete the theory of remedies for wrongs, we have now to consider other modes of preventing-and to a less extent of repairing-mischief caused to men by their fellows. We must (1) first take note of one indirect method of preventing wrongs which is only an extension of the method discussed in the previous chapter: I mean that of deterring, by infliction of punishments or enforcement of damages, not only the actual violators of any rights but those who incite others to violate them. The general expediency of this is manifest; though it is sometimes a matter of much delicacy to determine, in particular cases, what expression of opinion or sentiment may reasonably be held to constitute an incitement to law-breaking. Nor is it less manifestly expedient (2) that government should intervene with physical force to protect private rights, in cases where the deterrent effect of punishment has manifestly proved inadequate for their protection-i.e. where a manifest wrong is actually being committed, or where the intention of committing it is plainly shown. It is not necessary that the wrong should be intentional wherever manifestly illegal annoyance is being caused to any person by the action or inaction of others, it is desirable that Government should intervene to remove it, so far as the machinery required for such intervention would not entail

expense more burdensome to the community than the annoyance that would be prevented.

:

This proviso, however, leads us to observe (3) that the primitive method of self-defence and self-reparation must be allowed some place in the most completely civilised community. Improvements in legislation and the administration of law tend to reduce this within ever- narrowing limits but as the eye and hand of government cannot be everywhere, any private individual must be allowed to defend with force himself, and any neighbour who is forcibly attacked in person or property; under the condition that the mischief inflicted on the aggressor is not clearly out of proportion to the aggression-e.g. I must not shoot a man for trespassing on my land. Similarly private persons must be allowed to abate any nuisance that needs an immediate remedy-eg. cut down a fence across a public road. But though, when a wrong is threatened or begun, the immediate use of force is often necessary to prevent or terminate it, there is not the same need for promptitude in punishment: hence any violence that is not needed for the repulsion of wrong, and therefore merely serves to gratify the resentment of the person assailed, must be prohibited as illegal, owing to the great public importance of preventing private fighting. But forcible reparation-as distinct from retaliation-should be allowed to a limited extent on the same grounds as selfdefence thus, the forcible recapture of property, that has been taken away without pretence of legal right, should be allowed where delay in recapture is likely to entail further injury.

Further (4), we have seen that one end of punishment is to disable the criminal from further crime-for example, by imprisonment. A similar restraint of personal liberty is obviously expedient in the case of persons who are merely suspected of crime, if the grounds of suspicion be adequate since otherwise a criminal aware that he was suspected might always evade punishment by absconding

1 I shall notice in a later chapter the need of limiting this power by constitutional securities.

before the legal proof of his crime was complete. So, again, the mischief that might be done, to others as well as to themselves, by persons bereft of reason, ought to be prevented by placing them under special watch and restraint, so soon as their irrationality is evident.

Again (5), in the case of mischief against which the persons liable to injury can, and probably will, protect themselves if duly warned, it will hardly be doubted that government may legitimately intervene in the way of warning or diffusing information, as when the police inform the public that there is a special danger of pickpockets. Such information may be indirectly as well as directly given: thus, by instituting a certificate obtainable by professional men-physicians or teachers-whom it deems properly qualified, Government indirectly warns the public against impostors who may attempt to practise these callings without the requisite qualifications.

No one, again, will doubt (6) that where mere warning is not likely to be sufficient, Government may properly intervene to prevent certain kinds of mischievous acts or neglects by inspecting the processes in connection with which they are liable to be committed, so far as these processes are carried on in public;-as (e.g.) by inspecting shops and markets to prevent the deception of purchasers by sellers.

§ 2. But further: I conceive that the last-mentioned kind of intervention may reasonably be accompanied with regulations ordering precautions against harm,-i.e. Government may prohibit acts or omissions not directly or necessarily mischievous to others, but attended with a certain risk of mischief. And similar regulations may be applied to processes carried on otherwise than in public: so that, in order to secure their observance, Government must have the power of entering, for purposes of inspection, private grounds and buildings. Here, however, we have come to an extension of governmental interference, the legitimacy of which-though its aim does not go beyond the protection of individuals from mischief caused by other individuals-has been in some cases seriously disputed by individualists. Still in other cases