Punishment

Punishment names the deliberate infliction of pain or loss on one who has done wrong. Reward, its constant companion, is the return of good for good deeds. Around the two cluster nearly every question a society asks about wrongdoing. Who may punish, and by what right? What is punishment for? How much is enough? What may be done to the body, and what to the mind? When is pardon a virtue and when a betrayal? Does any punishment await the wicked beyond what men inflict? The idea is great for the Harvard Classics because it runs through every kind of book in them. Homer and Aeschylus treat it as the price of blood. The Psalms, the Koran and Dante treat it as the justice of God. More, Smith and Mill treat it as a matter of policy, and Locke as a problem of the nursery. The Massachusetts and American charters make it a matter of fundamental law.

Many of these authors begin from the conviction that political order itself rests on requital. Cicero defends, on the authority of Solon, the principle that a state is held together by reward and punishment¹. More’s Utopians are deterred from evil by penalties and drawn to virtue by rewards². Hobbes argues that coercive power must threaten a punishment greater than the benefit expected from breaking faith³. Chief Justice Marshall finds the power to punish implied in sovereignty even where no clause grants it⁴. Burke draws a striking limit from the same premise: punishment exists to conserve the people, so the people at large can never be punished by human hand⁵. Mill, writing last, narrows the ground most sharply. Coercion by law or by opinion is justified only to prevent harm to others^6,7.

Against this outward view stands an ancient and persistent doctrine that the deed punishes itself. Epictetus holds that the discontented are chastised simply by remaining as they are⁸. For him the real penalty of disobedience is the loss of faithfulness and modesty⁹. Augustine says that every inordinate affection is its own punishment¹⁰, and that wrongdoers are punished by the very blindness with which they act¹¹. The Koran teaches that whoever does ill does it against his own soul¹². Rousseau’s Savoyard Vicar places hell in the wicked man’s own envy and ambition¹³. Emerson gives the doctrine its fullest modern statement. Crime and punishment, he says, grow from one stem¹⁴; no one can do wrong without suffering wrong¹⁵; the thief finds the very laws of nature turned into penalties against him¹⁶. The companion teaching is that virtue needs no outward pay. Epictetus answers that doing right is enough¹⁷. Lessing, more historically, treats temporal rewards and punishments as scaffolding by which a childlike humanity was trained toward the inner rewards of well-doing^18,19. Hume adds a philosophical condition to the whole enterprise. Praise and punishment presuppose that actions spring from regular motives and a durable character, without which punishing the person would make no sense^20,21.

The question what punishment is for divides the books most clearly. Deterrence has the longest record. Cicero argues that pardon is mischievous in wartime, since severity warns imitators²². Machiavelli advises that a few signal executions are more merciful than a leniency that breeds rapine²³. Bunyan’s hanged malefactors are left by the highway as a warning²⁴. Manzoni’s merchant justifies hanging four rioters as a providential lesson²⁵. Correction is the rival aim. Confucius holds that to kill without first teaching is cruelty²⁶. Epictetus praises Lycurgus, who was given power to punish his assailant and reformed him by instruction instead²⁷. More’s Raphael says punishment should aim at destroying vice and saving men²⁸. Hobbes makes the point a law of nature: punishment must look to future good, to correcting the offender or directing others, never to past evil²⁹. Retribution answers that guilt itself demands suffering. Odysseus refuses Eurymachus’s offered amends and insists the wooers pay with their lives³⁰. The Koran prescribes life for life³¹. Luther insists that no rank exempts the guilty³². Burke concedes that punishing real tyrants is noble justice, but only if it is grave and dignified rather than insulting³³. At the extreme, the voice of Defoe’s Shortest-Way defends destroying dissenters as prevention and calls pity a cruelty to posterity³⁴. Mill’s caution is the counterweight: a government that punishes crime after the fact is less open to abuse than one that tries to prevent it³⁵.

On measure, the principle of proportion is old. The servant in Luke who knew his master’s will is beaten more than the one who did not³⁶. Tacitus records German penalties graded from hanging for traitors to fines in cattle³⁷. The Koran distinguishes killing by mistake, which is expiated by blood-money, from deliberate killing, which is punished in hell³⁸. Burke adds that punishing men for their ancestors’ offences is unjust³⁹. Early modern writers press proportion into an attack on their own codes. More’s Raphael argues that hanging for simple theft is cruel and fails to deter. When thief and murderer suffer alike, he says, the thief is provoked to kill the witness, and a society that breeds thieves and then hangs them is unjust^40,41,42. Harrison counts hundreds of rogues hanged yearly while their numbers grow⁴³. Smith hopes that the savage statutes against wool exporters were never executed⁴⁴. Manzoni mocks edicts that kept increasing the dose while the violent went unpunished^45,46. A related dispute concerns who should fix the penalty. Winthrop defends judicial discretion. If all penalties were prescribed, he says, any schoolboy could pronounce sentence, and a fixed fine is nothing to the rich and ruinous to the poor^47,48. The charters answer with limits rather than discretion. The Body of Liberties forbids barbarous bodily punishments⁴⁹, and the American Constitution bars cruel and unusual punishments and excessive fines⁵⁰.

The catalogue of penalties actually inflicted is vast. Harrison alone records hanging, quartering, boiling, branding and the Halifax gibbet^51,52. Alongside it run experiments with labour in place of death. Herodotus tells of an Ethiopian king who sentenced offenders to labour on embankments in proportion to their wrongs⁵³, and More’s Polylerites make felons repay and work⁵⁴. Darwin judges the convict system of his day: it makes men outwardly honest but scarcely gains the object of punishment⁵⁵. Exile ranges from Socrates’ refusal to propose it⁵⁶ to Athenian ostracism, which Plutarch says relieved envy rather than punished crime⁵⁷. Mill observes that legal penalties chiefly strengthen social stigma, which is more effective than they are⁵⁸. Torture belongs to another order, since it serves to extract confession rather than to requite. Harrison notes that England abhors it⁵¹. Cervantes shows a man sent to the galleys for what he confessed under torture⁵⁹. Shelley’s Beatrice remarks that only fear makes the rack cruel⁶⁰.

In the education of children, Locke leads the case against the rod. Beating breeds aversion to the very things the tutor wants loved, makes a slavish temper, and teaches that bodily pain is the greatest evil. Esteem and disgrace are the proper rewards and punishments^61,62. Montaigne had already warned that harsh compulsion bastardizes a gentle nature⁶³. Yet Locke reserves sober whipping for obstinacy, to be used without passion, so that correction bends the will instead of avenging the fault^64,65. Dana carries the debate onto the ship. Horrified by flogging, he still doubts that a total legal ban is wise and hopes improving opinion will make the practice fade^66,67,68.

Private vengeance is the oldest form of punishment in these books. In Homer, Orestes’ slaying of Aegisthus is held up as an exemplary act⁶⁹. In Aeschylus it becomes Apollo’s command⁷⁰. The sagas praise Gudrun for avenging her brothers⁷¹. But the tragedians also show the cycle. The slayer of today dies tomorrow by the fixed law of Zeus⁷², and the Furies hold that a mother’s blood is indelible⁷³. Hamlet’s revenge must damn as well as kill⁷⁴, and Laertes would allow revenge no bounds⁷⁵. The moralists condemn the practice. Pittacus, as Epictetus tells it, judged forgiveness better than revenge⁷⁶. Marcus Aurelius thought the best revenge is not to become like the wrongdoer⁷⁷. Bacon would allow revenge only for wrongs no law remedies⁷⁸. Schiller’s Furst says revenge feeds on itself and bears no fruit⁷⁹, and Manzoni has the hating heart find all things a punishment until it forgives⁸⁰. Milton’s Son reserves vengeance to God alone⁸¹. Shelley’s Orsino turns the doctrine around, claiming that Providence commits vengeance into human hands⁸².

Mercy forms the other pole. Bacon asks the judge to keep a severe eye on the example and a merciful eye on the person⁸³. Pliny pleads that clemency is most laudable where resentment is greatest⁸⁴. Caesar’s clemency earned him a temple⁸⁵, and Prospero forgives his brother’s rankest fault⁸⁶. Goethe stages the argument directly: Egmont urges pardon for crimes of frenzy, while Alva insists that no guilty person escape⁸⁷. Dana voices the opposing worry, that reducing sentences out of sympathy nullifies the law, whose chief restraint is the certainty of suffering⁸⁸. Pardon conditioned on repentance mediates between the two positions. Paul urges the Corinthians to forgive an offender already sufficiently punished⁸⁹, and Lincoln grants amnesty on condition of an oath⁹⁰. Corrupt pardon is the darker side, as when Shelley’s Cenci buys impunity for murder⁹¹.

Persecution for belief shows punishment detached from harm. Pliny doubts whether the bare name of Christian is punishable and settles on punishing obstinacy. Trajan replies that Christians need not be sought out and that those who recant are to be pardoned^92,93. The arguments against persecution gather force over time. Luther scoffs that if burning were the way to deal with heretics, the executioner would be the most learned doctor⁹⁴. Browne notes that centuries of persecution only hardened the Jews⁹⁵, and Voltaire that imprisoned Quakers converted their jailers⁹⁶. Mill presses those who would punish anti-Christian teaching to justify Marcus Aurelius as well⁹⁷. Milton allows that a monstrous book may be burned after publication but refuses to try it before birth^98,99.

Divine requital frames all the rest. Job’s friends hold that the wicked man’s portion from God is terror and ruin^100,101, and the Psalms ask God to render the wicked their desert¹⁰². The Koran repeats that each soul is paid what it has earned¹⁰³. Raleigh reads English and continental history as the visiting of kings’ cruelty on their descendants^104,105. The Greek gods punish pride: Prometheus is chained for his gift of fire¹⁰⁶, and Pentheus’ house is destroyed for denying Dionysus¹⁰⁷. Plato already grades the penalties after death. Incurable criminals are hurled into Tartarus, and lesser offenders are released only by their victims’ mercy¹⁰⁸. Virgil’s purging winds and fires cleanse the dead of inveterate vice¹⁰⁹. Dante perfects the principle of fitting punishment. Bertrand de Born carries his severed head because he parted father from son¹¹⁰, and Purgatory loads each proud soul in proportion to its pride¹¹¹. The Buddhist writings speak of the fruition of deeds in this life or later ones. The same slight wickedness, they teach, brings hell to one person and light expiation to another, according to character^112,113.

Doubt enters with the moderns. Hume denies that any reward or punishment beyond the ordinary course of events can be inferred from supposed divine justice¹¹⁴. Yet he grants that belief in such requital restrains the passions and supports the law¹¹⁵. Rousseau rejects eternal torment¹³, and Browne recalls Origen’s hope that the damned would at length be released¹¹⁶. Fairy tales keep the old certainty intact. Grimm’s wicked queen dances in red-hot shoes until she dies¹¹⁷. Johnson, however, replies to Dennis’s demand for poetical justice that the stage should mirror life, where such requital is not assured¹¹⁸. Self-punishment closes the circle. Oedipus judges his blinding a fitting penalty¹¹⁹, and Luther says true contrition seeks punishment rather than pardon¹²⁰.

The questions remain open. Is punishment just because it is deserved, or only because it does good? Can mercy coexist with law? Does the deed punish itself, or must God or the state supply what nature withholds? The books do not settle these questions. They show that every age has had to answer them anew.