The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Textual Introduction
• Acknowledgments
• Essays On Equality, Law and Education
• Law of Libel and Liberty of the Press 1825
• On Marriage 1832–33?
• Austin’s Lectures On Jurisprudence 1832
• Reform In Education 1834
• On Punishment 1834
• Smith On Law Reform 1841
• The Negro Question 1850
• Statement On Marriage 1851
• Remarks On Mr. Fitzroy’s Bill For the More Effectual Prevention of Assaults On Women and Children 1853
• A Few Words On Non-intervention 1859
• The Contest In America 1862
• The Slave Power 1862
• Austin On Jurisprudence 1863
• Educational Endowments 1866
• Inaugural Address Delivered to the University of St. Andrews 1867
• The Subjection of Women 1869
• Editor’s Note
• Chapter I
• Chapter Ii
• Chapter Iii
• Chapter Iv
• Treaty Obligations 1870
• The Contagious Diseases Acts 1871
• Appendices
• Appendix A: Harriet Taylor, On Marriage (1832-1833?)
• Appendix B: Harriet Taylor Mill, Papers On Women’s Rights (1847-1850?)
• 1.: Rights of Women—And Especially With Regard to the Elective Franchise—By a Woman—Dedicated to Queen Victoria
• 2.: Women—(rights Of)
• 3.: The Rights of Women to the Elective Franchise and Its Advantages
• 4.: Why Women Are Entitled to the Suffrage
• 5.: [reform: Ends and Means]
• Appendix C: Harriet Taylor Mill, Enfranchisement of Women (1851)
• Appendix D: Draft of a Portion of the Inaugural Address (1866)
• Appendix E: Jamaica Committee: Public Documents (1866, 1868)
• Appendix F: Textual Emendations
• Appendix G: Bibliographical Index of Persons and Works Cited, With Variants and Notes

ON PUNISHMENT

1834

EDITOR’S NOTE

Monthly Repository, n.s. VIII (Oct., 1834), 734-6. Title footnoted: “Remarks on Criminal Law; with a Plan for an Improved System, and Observations on the Prevention of Crime [By Thomas Jevons, London: Hamilton, Adams; Edinburgh: Waugh and Innes, Dublin Curry; Liverpool: Marples, 1834.]” Running titles as title. Unsigned; not republished. Identified in Mill’s bibliography as “An article headed ‘On Punishment’ being a review of an anonymous work by Mr. Jevons of Liverpool; in the Monthly Repository of October 1834” (MacMinn, 42). In the Somerville College copy (tear-sheets) there are two corrections by Mill that are adopted in the present text, at 78.6 the question mark after “another” is deleted (we substitute a period); and at 79.17 “merely” is altered to “surely”. For comment on the review, see xli and lxi above.

On Punishment

the free and bold spirit of inquiry, and the benevolence of heart, which breathe through this little tract, and which are characteristic of the supposed writer, render his speculations on the now hacknied subject of penal law, deserving of an attention, which the degree of truth or of practical applicability which they possess, would not of itself have entitled them to. The author, in fact, deals with punishment as Mr. Owen deals with the institution of private property. He makes out a case of manifest hardship and cruelty against the one, as Mr. Owen does against the other, and with as little difficulty, for the materials are ample; and like Mr. Owen, he helps out his case by including in his enumeration not only the evils inseparable from the institution itself, but all those which are actually attendant on it in its present form, however easily remediable. He then gravely proposes that punishment should be abolished, and the prevention of crime attempted by other means; as one might conceive a philanthropist enlarging upon the nauseousness of medicine, its injurious effects upon the constitution, the hardship of administering it to persons who are ill and helpless and not their own masters, and concluding that medicine be abolished, and that mankind should endeavour to preserve their health in some other manner.

The author’s substitute for punishment is itself a punishment, though one of the mildest kind. He proposes that those who are convicted of offences, whether of the slightest or of the gravest description, should be no otherwise ill-treated than by being compelled to live as a community apart, in a portion of the country specially allotted to them, in which they should have the same opportunities of gaining their livelihood as the rest of the the community, and from which they should be liberated on proof of continued good conduct. Within this district there should be a smaller enclosure, to which those should be again banished who have violated the laws of the criminal community to which they were first relegated; and within this second a third, in which again, as the last resort, there should be a prison. But no one is to be incarcerated in this prison without having the alternative offered to him of going into perpetual exile.

In the subordinate arrangements there is some good sense and much ingenuity, and as one among many systems of reformatory discipline, the plan of our author seems worthy to be tried by way of experiment upon the less corrupted of the persons convicted of minor offences. But as a plan of systematic treatment for all offenders, to be adopted in lieu of every other punishment, it would be a more utter failure than the worst of the penal systems, for it would fail to deter from crime. On whom would the penalty of temporary banishment from the society of the honest, operate as a sufficient motive to restrain from the violation of the laws? Upon the honest; upon those who are already sufficiently restrained by their own disposition, or by the opinion of one another. All who required restraint, would find this restraint inefficacious; and if all who, in any manner violated the laws, were removed into such a place of reformation, the inhabitants of the reformatory would speedily outnumber the remainder of the community, and would become themselves the rulers of the country.

Even this consequence were it admitted by the author, would not, perhaps, decide the question in his mind; for he considers the infliction of punishment for the purpose of prevention, as in itself an immorality and an injustice.

“To punish one man,” says he, “in order that some other unknown person may be deterred from the commission of crime, is an iniquitous practice, and cannot be justified even if its consequences, so far as the public is affected by the exhibition, were beneficial in ever so great a degree, and could be calculated upon with certainty.” [P. 72.]

He calls the infliction of punishment “for example’s sake,” a debasing practice: and expresses his “earnest wishes that so wicked a principle may never again be adopted as the motive and guide by which the high and mighty may rule their low and erring brethren.” (P. 73.)

Here is much good indignation thrown away on an occasion, when there is nothing to call for it but a form of words. You do not punish one person in order that another may be deterred. The other is deterred, not by the punishment of the first, but by the expectation of being punished himself: and as the punishment you threaten him with, would have no effect upon his conduct, unless he believed that it would really be inflicted, you are obliged to prove the reality of your intention, by keeping your word whenever either he, or any other person, disregards your prohibition. This is no injustice to the sufferer, because he, too, has been warned beforehand; unless indeed, not the punishment merely, but the law itself, be unjust, and an improper restriction upon his freedom. If the acts which the law prohibits, were such as he had no right to do, and if he had full warning of all the consequences to which he would subject himself by violating it, he has no ground of complaint that its full penalties are inflicted, not to deter others, but in order that what really deters others, the threat of punishment to themselves, may not be an idle mockery.

Our author’s objection is only valid against either ex post facto laws, or laws which are in themselves unjust, independently of the means by which they are enforced. In all other cases the offender himself, and not the legislator, is responsible for the evil which falls upon him by his voluntary breach of a just law.

We may add, that if the principles laid down by our author constitute a valid objection to the existing notions of punishment, they apply with exactly the same force to his own system of banishment to a particular place. If what he acknowledges to be “the fundamental principle that should govern the criminal code of every enlightened state, viz. protection of person and property,” (p. 23,) will justify the infliction of the smallest atom of pain upon offenders, it will justify the infliction of any amount necessary for the end; unless such as would outweigh all the benefits of which the security of person or property is the cause. The only right by which society is warranted in inflicting any pain upon any human creature, is the right of self-defence; and if this will justify it in interfering with the natural liberty of its offending members, by the degree of coercion implied in removing them to the reformatory and keeping them there, it will warrant any greater degree of coercion which may be found necessary to protect the innocent part of the community against their encroachments. On any other principle, instead of relegating offenders to a particular part of the country, or tendering to them the alternative of voluntary exile, the utmost rights of honest people would extend no further than to remove out of harm’s way, by going into exile themselves. But this is surely being scrupulous in the wrong place. If we were attacked by robbers or savages, and in danger of our lives, no one ever questioned our right to defend ourselves even to the death of the assailant; and we cannot conceive a greater piece of inconsistency than, admitting this, to deny us the liberty of declaring beforehand to all robbers, that if they attack us we will put them to death. No doubt if we can protect ourselves as effectually with less evil to them, it is our duty to do so; and we ought to try the experiment in all ways which afford a chance of success, before we give it up as hopeless. But our right to punish, is a branch of the universal right of self-defence, and it is a mere subtlety to set up any distinction between them.

Some of the author’s minor suggestions are well deserving of the attention of an enlightened legislature. We would notice in particular [p. 95] his idea of restraining juvenile delinquency by holding the parents legally responsible instead of the children.