§1. In the last chapter I was concerned with the distinction between Punishments and Damages, and the distinction---which 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 excessive anxiety 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 denomination 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 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. So again, it is clearly in accordance with our principle, that government should intervene with physical force to protect private rights, in particular cases where the deterrent effect of punishment is evidently inadequate for their protection---i.e. where a manifest wrong is actually being committed, or where the intention of committing it is plainly shown. Wherever manifestly illegal annoyance is being caused or threatened to any person by the action or inaction of others, it seems undoubtedly the business of government to intervene to remove or prevent it,---except so far as the machinery required for such intervention would entail expense more burdensome to the community than the annoyance that would be prevented.
This proviso, however, leads us to observe that the primitive method of self-defence and self-reparation must be allowed some place in the most completely civilised community. The establishment, of civilised order tends to reduce this within narrow limits: but as the eye of government cannot be all-seeing nor its hand everywhere active, any private individual should 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 should be allowed to abate any public nuisance that needs an immediate remedy---e.g. 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, should 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 self-defence: 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, 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 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, 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 sometimes usefully 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 that where mere warning is not likely to be sufficient, government may properly intervene to prevent certain kinds of mischievous acts or neglects, by keeping some watch on 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 visiting shops and markets where there is reasonable ground for suspecting the deception of purchasers by sellers.[Back to:] [Elempol, Chapter 8, Section 4]