The World's Greatest Books - Volume 14 Part 18

In fact, we cannot affirm goodness, badness, or indifference of motive, except in the particular instance. A better cla.s.sification is into the social--including goodwill, love of reputation, desire of amity, religion; dissocial--displeasure; self-regarding--physical desire, pecuniary interest, love of power, self-preservation.

Of all these, the dictates of goodwill are the surest of coinciding with utility, since utility corresponds precisely to the widest and best-advised goodwill. Even here, however, there may be failure, since benevolence towards one group may clash with benevolence towards another. Next stands love of reputation, which is less secure, since it may lead to asceticism and hypocrisy. Third comes the desire of amity, valuable as the sphere in which amity is sought is extended, but also liable to breed insincerity. Religion would stand first of all if we all had a correct perception of the divine goodness; but not when we conceive of G.o.d as malevolent or capricious; and, as a matter of fact, our conception of the Deity is controlled by our personal biases.

The self-regarding motives are, _ex hypothesi_, not so closely related to utility as the social motives, and the dissocial motives manifestly stand at the bottom of the scale. In respect to any particular action there may be a conflict of motives, some impelling towards it, others restraining from it; and any motive may come in conflict with any other motive. It will be found hereafter that in the case of some offences the motive is material in the highest degree, and in others wholly immaterial; in some cases easy, and in others impossible to gauge.

_III.--The Principles of Punishment_

Goodness or badness, then, cannot be predicated of the motive. What is good or bad in the man when actuated by one motive or another is his disposition, or permanent att.i.tude of mind, which is good or bad as tending to produce effects beneficial to the community. It is to be considered in regard to its influence on (1) his own happiness; (2) other people's. The legislator is concerned with it so far as it is mischievous to others. A man is held to be of a mischievous disposition when it is presumed--for it is a mere presumption--that he inclines to acts which appear to him mischievous. Here it is that "intentionality"

and "consciousness" come in.

Where the tendency of the act is good, and the motive is a social one, a good disposition is indicated; where the tendency is bad, and the motive is self-regarding, a bad disposition is indicated. Otherwise, the indication of good or bad disposition may be very dubious or non-existent; as may easily be seen by constructing examples. Now, our problem is to measure the depravity of a man's disposition, which may be defined as the sum of his intentions. The causes of intentions are motives. The social motives may be called tutelary, as tending to restrain from mischievous intentions; but any motive may become tutelary on occasion. Love of ease, and desire of self-preservation, in the form of fear of punishment, are apt to be tutelary motives.

Now we can see that the strength of a temptation equals the sum of the impelling motives, minus the sum of the tutelary motives. Hence, the more susceptible a man is to the standing tutelary motives, the less likely is he to yield to temptation; in other words, the less depraved is his disposition. Hence, given the strength of the temptation, the mischievousness of the disposition is as the apparent mischievousness of the act. Given the apparent mischievousness of the act, the less the temptation yielded to, the greater the depravity of disposition; but the stronger the temptation, the less conclusive is the evidence of depravity. It follows that the penalty should be increased--_i.e._, the fear of punishment should be artificially intensified, in proportion as, apart from that fear, the temptation is stronger.

We now come to consequences. The mischief of the act is the sum of its mischievous consequences, primary and secondary. The primary mischief subdivides into original, _i.e._, to the sufferer in the first instance; and derivative, to the definite persons who suffer as a direct consequence, whether through their interest, or merely through sympathy.

The secondary mischiefs, affecting not specific persons but the community, are actual danger, or alarm--the apprehension of pain. For the occurrence of the act points to the possibility of its repet.i.tion; weakening the influence both of the political and of the moral sanction.

An act of which the primary consequences are mischievous may have secondary beneficial consequences, which altogether outweigh the primary mischief--_e.g._, the legal punishment of crime. The circ.u.mstances influencing the secondary mischiefs of alarm and danger are the intentionality, the consciousness, the motive, and the disposition; danger depending on the real, and alarm on the apparent, state of mind, though the real and the apparent coincide more commonly than not.

Between the completely intentional and completely unintentional act there are various stages, depending on the degree of consciousness, as explained above. The excellence of the motive does not obliterate the mischievousness of the act; nor _vice versa_; but the mischief may be aggravated by a bad motive, as pointing to greater likelihood of repet.i.tion. This is less the case, however, when the motive is dissocial, such motives being generally less constant, as having reference to a particular, not a general, object; the religious motive, as being more constant, is more pernicious when it has a mischievous issue.

Punishment, being primarily mischievous, is out of place when groundless, inefficacious, unprofitable, or needless. Punishment is inefficious when it is _ex post facto_, or extra-legal, or secret; or in the case of irresponsible (including intoxicated) persons; and also so far as the intention of the act was incomplete, or where the act was actually or practically under compulsion. It is unprofitable when under ordinary circ.u.mstances the evils of the punishment outweigh those of the offence; this subject, however, will be more fully dealt with later. It is needless when the end in view can be as well or better attained otherwise.

Now, the aim of the legislator is (1) to prevent mischief altogether; (2) to minimise the inclination to do mischief; (3) to make the prevention cheap. Hence, (1) the punishment must outweigh the profit of the offence to the doer; (2) the greater the mischief, the greater the expense worth incurring to prevent it; (3) alternative offences which are not equally mischievous, as robbery and robbery with murder, must not be equally punished; (4) the punishment must not be excessive, and therefore should take into account the circ.u.mstances influencing sensibility; (5) so also must the weakness of the punishment due to its remoteness, and the impelling force of habit.

The properties of punishment necessary to its adjustment to a particular offence are these: (1) variability in point of quant.i.ty, so that it shall be neither excessive nor deficient; (2) equality, so that when applied in equal degree, it shall cause equal pain--_e.g._, banishment may mean much to one man, little to another; (3) commensurability with other punishments; (4) characteristicalness, or appropriateness; (5) exemplarity--it must not seem less than it is in fact; (6) frugality--none of the pain it causes is to be wasted. Minor desirable qualities are (7) subserviency to reformation of character; (8) efficiency in disabling from mischief; (9) subserviency to compensation; (10) popularity, _i.e._, accordant to common approbation; (11) remissibility.

_IV.--Division of Offences_

An offence--a punishable act--is const.i.tuted such by the community; though it ought not to be an offense unless contrary to utility, it may be so. It is a.s.sumed to be a detrimental act; detrimental therefore to some person or persons, whether the offender himself or other a.s.signable persons, or to persons not a.s.signable.

Offences against a.s.signable persons other than the offender form the first cla.s.s; offences against individuals, or private offences, or private extra-regarding offences. The second cla.s.s is formed by semi-public offences, _i.e._, not against a.s.signable individuals, nor the community at large, but a separable group in the community, _e.g._, a cla.s.s or a locality. The third cla.s.s are those which are simply self-regarding; the fourth, against the community at large; the fifth, multiform or heterogeneous, comprising falsehood and breaches of trust.

The first cla.s.s may be subdivided into offences against (1) the person, (2) reputation, (3) property, (4) condition--_i.e._, the serviceableness to the individual of other persons, (5) person and property together, (6) person and reputation together.

The second, "semi-public," cla.s.s, being acts which endanger a portion of the community, are those operating through calamity, or of mere delinquency. The latter are subdivided on the same lines as private offences. So with the third or self-regarding cla.s.s.

In cla.s.s four, public offences fall under eleven divisions: (1) offences against external security--_i.e._, from foreign foes; (2) against justice--_i.e._, the execution of justice; (3) against the preventive branch of police; (4) against the public force--_i.e._, military control; (5) against increase of national felicity; (6) against public wealth--_i.e._, the exchequer; (7) against population; (8) against national wealth--_i.e._, enrichment of the population; (9) against sovereignty; (10) against religion; (11) against national interests in general.

In cla.s.s five, falsehood comprises simple falsehoods, forgery, personation, and perjury; again distributable like the private offences.

In the case of trusts, there are two parties--the trustee and the beneficiary. Offences under this head cannot, for various reasons, be conveniently referred to offences against property or condition, which also must be kept separate from each other. As regards the existence of a trust: as against the trustee, offences are (1) wrongful non-investment of trust, and wrongful interception of trust, where the trusteeship is to his benefit; or (2) where it is troublesome, wrongful imposition of trust. Both may similarly be offences against the beneficiary. As regards the exercise of the trust, we have negative breach of trust, positive breach of trust, abuse of trust, disturbance of trust, and bribery.

We may now distribute cla.s.s one--offences against the individual--into _genera_; to do so with the other cla.s.ses would be superfluous. Simple offences against the person are actions referring to his actual person, body or mind, or external objects affecting his happiness. These must take effect either through his will, or not. In the former case, either by constraint, or restraint, confinement, or banishment.

In any case the effect will be mortal or not mortal; if not mortal, reparable or irreparable injury when corporal, actual, or apprehended, sufferance when mental. So the list stands--simple and irreparable corporal injuries, simple injurious restraint or constraint, wrongful confinement or banishment, homicide or menacement, actual or apprehended mental injuries. Against reputation the _genera_ of offences are (i) defamation, (2) vilification. Of offences against property, simple in their effects, whether by breach of trust or otherwise, the _genera_ are: wrongful non-investment, interception, divestment, usurpation, investment, of property; wrongful withholding of services, destruction, occupation, or detainment, embezzlement, theft, defraudment, extortion.

Of complex offences against person and reputation together: corporal insults, insulting menacement, seduction, and forcible seduction, simple lascivious injuries. Against person and property together: forcible interception, divestment, usurpation, investment, or destruction of property, forcible occupation or detainment of movables, forcible entry, forcible detainment of immovables, robbery.

As to offences against condition: conditions are either domestic or civil; domestic relations are either purely natural, purely inst.i.tuted, or mixed. Of the first, we are concerned only with the marital, parental, and filial relations. Under the second head are the relations of master and servant, guardian and ward. In the case of master and servants, the headings of offences are much like those against property.

Guardianship is required in the cases of infancy and insanity; again the list of offences is similar. The parental and filial relations, so far as they are affected by inst.i.tutions, comprise those both of master and servant, and of guardian and ward; so that the offences are correspondent.

The relation of husband and wife also comprises those of master and guardian to servant and ward. But there are further certain reciprocal services which are the subject of the marital contract, by which polygamy and adultery are const.i.tuted offences in Christian countries, and also the refusal of conjugal rights.

From domestic conditions we pa.s.s to civil. Eliminating all those which can be brought under the categories of trusts and domestic conditions, there remain conditions, const.i.tuted by beneficial powers over things, beneficial rights to things, rights to services, and by corresponding duties; and between these and property there is no clear line of demarcation, yet we can hit upon some such conditions as separable. Such are rank and profession which entail specific obligations and rights--these are not property but conditions; as distinguished from other exclusive rights bestowed by the law, concerned with saleable articles (_e.g._, copyright), which convey not conditions, but property.

So, naturalisation conveys the conditions of a natural born subject.

Public offences are to be catalogued in a manner similar to private offences.

My object has been to combine intelligibility with precision; technical terms lack the former quality, popular terms the latter. Hence the plan of the foregoing a.n.a.lysis has been to take the logical whole const.i.tuted by the sum of possible offences, dissect it in as many directions as were necessary, and carry the process down to the point where each idea could be expressed in current phraseology. Thus it becomes equally applicable to the legal concerns of all countries or systems.

The advantages of this method are: it is convenient for the memory, gives room for general propositions, points out the reason of the law, and is applicable to the laws of all nations. Hence we are able to characterise the five cla.s.ses of offences. Thus, of private offences, we note that they are primarily against a.s.signable individuals, admit of compensation and retaliation, and so on; of semi-public offences, that they are not against a.s.signable individuals, and, with self-regarding offences, admit of neither compensation nor retaliation; to which a series of generalisations respecting each cla.s.s can be added.

The relation between penal jurisprudence and private ethics must be clarified. Both are concerned with the production of happiness. A man's private ethics are concerned with his duty to himself and to his neighbour; prudence, probity, and beneficence. Those cases described as unmeet for punishment are all within the ethical, but outside the legislative, sphere, except the "groundless" cases, which are outside both. The special field of private ethics is among the cases where punishment is "unprofitable" or "inefficacious," notably those which are the concern of prudence. So with the rules of beneficence; but beneficence might well be made compulsory in a greater degree than it is. The special sphere of legislation, however, lies in the field of probity.

A work of jurisprudence is either expository of what the law is, or censorial, showing what it should be. It may relate to either local or universal jurisprudence; but if expository can hardly be more than local. It may be internal, or international, though there is very little law in international procedure; if internal, it may be national or provincial, it may be historical or living; it may be divided into statutory and customary, into civil and penal or criminal.

JEAN BLOCH

The Future of War

The son of humble Polish Jews, Jean Bloch, who was born in 1836, ama.s.sed a large fortune out of Russian railways. At the age of fifty he retired from business, and devoted himself to an exhaustive study of the conditions and possibilities of modern warfare. To this labour he gave eight years, and, in 1898, the fruits of it were published in a work of six volumes, in which he sought to prove that, owing to the immensity of modern armies, the deadliness of modern weapons, and the economic conditions that prevailed in the larger states, a great European war was rapidly becoming a physical impossibility. M. Bloch died on January 7, 1902, not before several of his theories had been tested by actual campaigning. His main argument, however, concerns a war on European frontiers between European powers, and such a war he did not live to witness.

_I.--The Problem Stated_

In the public and private life of modern Europe a presentiment is felt that the present incessant growth of armaments must either call forth a war, ruinous both for conqueror and for conquered, and ending perhaps in general anarchy; or must reduce the people to the most lamentable condition. Is this unique state of mind justified by possible contingencies?

It is true that the ruinousness of war under modern conditions is apparent to all. But this gives no sufficient guarantee that war will not break forth suddenly, even in opposition to the wishes of those who take part in it. Involuntarily we call to mind the words of the great Bacon, that "in the vanity of the world a greater field of action is open for folly than for reason, and frivolity always enjoys more influence than judgment."

War, it would appear from an a.n.a.lysis of the history of mankind, has in the past been a normal attribute of human life. The position now has changed in much, but still the new continues to contend with the old.

With the innumerable voices which are now bound up in our public opinion, and the many different representatives of its interests, naturally appear very different views on militarism and its object--war.

The propertied cla.s.ses are inclined to confuse even the intellectual movement against militarism with aspirations for the subversion of social order; on the other hand, agitators, seeking influence on the minds of the ma.s.ses, deny all existing rights, and promise to the ma.s.ses more than the most perfect inst.i.tutions could give them. And although the ma.s.ses are slow to surrender themselves to abstract reasoning, and act usually only under the influence of pa.s.sion, there can be no doubt that this agitation penetrates the people more and more deeply.

With such a position of affairs, it is necessary that influential and educated men should seriously attempt to give themselves a clear account of the effect of war under modern conditions; whether it will be possible to realise the aims of war, and whether the extermination of millions of men will not be wholly without result.

If, after consideration of all circ.u.mstances, we answer ourselves: "War with such conditions is impossible; armies could not sustain those cataclysms which a future war would call forth; the civil population could not bear the famine and interruption of industry"; then we might ask the general question: "Why do the peoples more and more exhaust their strength in acc.u.mulating means of destruction which are valueless even to accomplish the ends for which they are prepared?"

In recent times war has become even more terrible than before in consequence of perfected weapons of destruction and systems of equipment and training utterly unknown in the past. Infantry and artillery fire will have unprecedented force; smoke will no longer conceal from the survivors the terrible consequences of the battle. From this, and from the fact that the ma.s.s of soldiers will have but recently been called from the field, the factory, and the workshop, it will appear that even the psychical conditions of war have changed.

The thought of the convulsions which will be called forth by a war, and of the terrible means prepared for it, will hinder military enterprise.

But, on the other hand, the present conditions cannot continue to exist for ever. The peoples groan under the burdens of militarism. We are compelled to ask: Can the present incessant demands for money for armaments continue for ever without social outbreaks? The position of the European world, the organic strength of which is wasted, on the one hand, in the sacrifice of millions on preparations for war, and, on the other, in a destructive agitation, which finds in militarism its apology and a fit instrument for acting on the minds of the people, must be admitted to be abnormal and even sickly. Is it possible that there can be no recovery from this? We are deeply persuaded that a means of recovery exists if the European states would but set themselves the question--in what will result these armaments and this exhaustion? What will be the nature of a future war? Can recourse be had to war even now for the decision of questions in dispute, and is it possible to conceive the settlement of such questions by means of the cataclysm which, with modern means of destruction, a war between five great powers with ten millions of soldiers would cause?

That war will become impossible in time is indicated by all. The more apposite question is--when will the recognition of this inevitable truth be spread among European governments and peoples? When the impossibility of resorting to war for the decision of international quarrels is evident to all, other means will be devised.