Conversely, ignorance of facts and circumstances which go to determine the moral quality of conduct, is allowed to be a palliation of offense, followed by a mitigation of punishment; yet is not allowed as complete excuse, for no human mind can be absolutely blind to its obligations.1

The sentiment and impulse prompting us to reward one who does well is, speaking generally, in inverse proportion to his intelligence and culture. A street gamin who finds and restores my lost purse should have some portion of its con

tent bestowed on him, but I would not offer to reward a gentleman; should I commit the blunder, he would be justly indignant. We heartily approve the good deeds of cultured persons, but express rewards are rarely proposed to them. Academic honors are offered to youth as a stimulus before the fact, but in mature life honors are indefinite, spontaneous, and come after the fact. Titles of nobility are usually granted as rewards only for some special and signal service. Neither these, nor honorable distinctions of any kind, nor any emoluments, are granted for mere conformity to law. In the civil code, while to each law is attached a penalty for its violation, to no law in any enlightened State is attached a reward for its observance.2

This last observation gives occasion to remark that while, as already stated, penalty is a necessary sanction, essential in the very notion of violable law, reward is only a contingent sanction, it may or may not be applied, it is not essential. Moreover, in the progress of moral culture, not only does a promise of reward, but also the threat of punishment, gradually lose its influence. Many a man reaches the stage where these are, for himself, lost to view, and he fulfills his

1 See Luke, 23:34; Hebrews, 5:2; 1 Timothy, 1:13; See also infra, § 61.

2 The occasional rewards offered for the detection of felons, having a purpose quite different, are not exceptions.

obligations without regard to either. This is a high, yet not the highest, degree of culture.1

§ 53. Another class of sanctions, originating in the foregoing, may be discriminated as distinctly objective, being embodied in formal ordinance, and having reference to overt misdeeds. They are the enactments of an organized State. No longer recognized as individual judgments, they supersede the private opinion of the offender, the court and the executive, they have passed beyond the more or less sympathetic opinion of the public, and are objectified in a binding penal code.

Such, in general, is the character of all civil law. It cannot be too strongly or repeatedly emphasized that the whole science and practice of jurisprudence, in all its various branches, together with the vast and complex system of courts of judicature, having a prescribed and established form, manner and order for conducting suits and prosecutions, and having executive powers, has its ultimate basis and justification in the ethical principle of a personal right, and is merely an authoritative explication and application of the one moral law: Thou shalt not trespass.2

1 "Those writers who disparage the morality of the New Testament as employing an inferior class of motives because it appeals to fear of future punishment and to hope of reward in heaven, seem strangely incapable of appreciating the real scope and spirit of Christian morality. The true glory of Christianity as taught in the New Testament is the almost measureless range of its motives, ascending from the hope and fear which can reach the lowest degradation to which man can descend, up to the purest spirit of disinterested love of which human beings are capable.' ROBINSON, Principles

and Practice of Morality, p. 143, note. Cf. infra, § 91.

2 Jurists quite commonly distinguish civil law from moral law, and legal obligation from moral obligation. This distinction has crept into common speech, conveying the erroneous impression that these are two coördinate kinds of law or obligation, having a different origin and a distinct essence, so as to be not only logically opposed, but sometimes, indeed often, in actual, practical opposition. Whereas in fact no obligation can possibly bind a

Very many kinds of enacted sanctions of law have been devised. There can be no doubt that in the early stages of organized society, the spirit of personal vengeance dominating, the intent and form of legal punishment was largely retaliatory, a paying back blow for blow. This barbarous, strict lex talionis is no longer in vogue. It has been expunged from the penal code of civilized States, excepting in case of life for life, which is justified on grounds other than vengeance. For it is evident that, if requital in kind, to satisfy the thirst for revenge, be the object of punitive measures, then it is the purpose of the State, as far as it can reach, to double the suffering of its members; which is absurd. Whatever of vengeance is compatible with legal punishment, is reserved expressly for a tribunal higher than the State.2

Under a prior topic it was stated that rights may be reduced to three, a right to life, a right to liberty, and a right to property. In refined codes the penalties correspond, consisting exclusively in deprivation of life, or of liberty by human will that is not a moral obligation, and all jurisprudence or politics in general is strictly a subordinate branch of applied Ethics. Aristotle's Politics is a continuation of his Ethics. In concluding the latter treatise, he says: "Since all former writers have passed over without examination the subject of legislation, it would perhaps be better for us to examine it ourselves, and, in short, the whole subject of politics, in order that the philosophy of human nature, may, as far as in us lies, be completed." The transition is in the closing sentence: "Let us then make a commencement." Nic. Eth. bk. x, ch. 9.

19:21; and

1 See Exodus, 21 : 23-25; Leviticus, 24: 17-21; Deuteronomy, cf. Matthew, 5:38, 39. Aristotle says: "Some people think that retaliation is absolutely just, as the Pythagoreans said; for they defined justice simply as retaliation to another. But retaliation does not fit in with the idea either of distributive or of corrective justice; and yet they would have that this is the meaning of the Rhadamanthian rule: If a man suffers what he has done, straightforward justice would take place;' for in many points it is at variance." — Nic. Eth., bk. v, ch. 5, 1. See also Butler, On Resentment, Sermon, viii.

2 See Deuteronomy, 32:35; and Romans, 12 : 19.

imprisonment, or of property by fines, damages or confiscation. Flogging has been generally abolished. Restitution, or else compensation, is enforced when practicable, but is not punishment; hence damages are added.1 Punishment, then, is practically the taking away of that the right to which has been forfeited by trespass, by a transgression of the bounds set by personal relations to personal liberty. Moreover it was pointed out that the three kinds of rights may be reduced to one, the right to liberty in the gratification of normal desires. Hence it appears that as all offenses are unwarranted interferences in liberty, so all legitimate penalties are warranted interferences in liberty.2

§ 54. Pain is the correlate of restrained or constrained energy. Each of our powers tends spontaneously, that is, of its own proper nature, without strain, to put forth a definite quantity of free activity. If this amount be realized, there is pleasure; if less, the energy being repressed, or if more, the energy being overwrought, there is pain. Thus all pleasure arises from the free natural play of our faculties; all pain, from their restraint or constraint. The normal is pleasurable, the abnormal painful.3

1 See Exodus, 22: 1 sq.; and cf. Luke, 19:8.

2 See supra, §§ 23, 27, 29. The ground on which the State is warranted in inflicting punishment, is examined infra, § 136 sq. The Constitution of the United States provides that no person shall be deprived of life, liberty, or property, without due process of law." ·Amendments, Article v. Also that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”—Idem, Art. viii. "In San Francisco an ordinance was passed declaring that any male person confined in the county jail should have the hair of his head cut to within an inch of his scalp. To a Chinaman the loss of his queue was regarded not only as a disgrace, but as entailing suffering after death. This kind of punishment

was declared unconstitutional by the Supreme Court."—COKER, Government of the United States, ch. xviii.

3 See Psychology, § 228; also, Hamilton, Metaphysics, Lecture xlii sq. This doctrine of pleasure and pain originated with Aristotle ; see especially Nic. Eth., bk. x, ch. 4.

Naturally we have an inclination to pleasure, and an aversion to pain. A desire for pain, simply for its own sake, is a psychological impossibility. This constitutional aversion to pain impels one constantly away from abnormal extremes toward an intermediate normal condition, while the co-operating constitutional inclination to pleasure constantly draws one, like a pendulum, toward the same golden mean of moderation and harmonious order.

All trespass, being an interference in natural spontaneous liberty of action, gives pain. All legal penalty, for the same reason, is the infliction of pain; rarely in like manner, but always, if adequate, graduated to correspond in measure with the degree of trespass, and limited to the pain of repression. More widely, all sanctions of the moral law, innate or enacted, natural or artificial, are essentially the same, depending for their efficacy on the same element; all rewards are pleasures, all punishments pains. These are the natural attraction and repulsion in the spiritual sphere, tending to maintain a universal equilibrium, and to restore it when disturbed.1

It was a mooted question among the ancients whether pain is an evil, and to-day it is still a question. When we consider its influence in the preservation of our powers of body and mind, averting the ruinous effects of excess on the one hand, and of inaction on the other; when we observe the working of the whip of pain in the world of sentient beings, tending constantly to harmonize their mutual interests, and adjust their actual relations to the moral order of the universe in "a stream of tendency that makes for righteousness," it seems not merely unreasonable to account pain an evil, but that it should be reckoned essential to welfare,

1 Pain, suffering, anguish; from Fr. peine, penalty, from Lat. pœna, punishment, penalty, pain; cognate with Gk. Tоý, a ransom, generally requital, also vengeance, penalty. Root uncertain, but perhaps, like Skt. pú, from Aryan root PU, to purify. Punish, to chasten, same origin. - SKEAT.