CHAPTER XII
WHO DESERVES PUNISHMENT
If there is any justice in human punishment it must be based upon the theory of intrinsic evil in the victim. Punishment cannot be justified because of the violation of human law. To violate law is often the highest, most sacred duty that can devolve upon the citizen, and even were it not, the condition of the heart is the test of the evil or good purpose, not the good or evil of the act. The world worships and venerates many of its dead because they violated human law. Every new religion, every social advancement has been carried on in violation of human law. The criminals who, in the face of contumely, hatred or violence, have led the world to a higher standard and brought humanity to a diviner order, have so loved truth and righteousness as to defy the law, and in every age these men have met the life of outcasts, and the death of felons. Whatever may be said of the necessity of government to protect itself, no one can believe that any human being merits punishment for following his own highest ideal. Punishment can only be in any wise defended upon the theory that the individual is untrue to himself, that his heart is bad. But all schemes of human punishment seem specially contrived to exempt this class of men. Those who are untrue to themselves find no difficulty in obeying the state, or at least in seeming to be subservient to its laws. The cunning man without strong convictions of right and wrong can always find ample room to operate his trade inside the dead line the law lays down. Even Blackstone wrote that a man who governed his conduct solely by the law was neither an honest man nor a good citizen. The penal code cannot pretend to cover all the vicious acts of men. If there is a distinction between vicious acts and righteous acts, each are so numerous that even to catalogue them would be beyond the power of the state. The most that the penal code pretends to do is to choose a number of fairly well classified acts and to set penalties for these crimes. The men who really entail the most evil and suffering on mankind easily shape their conduct to avoid these acts. If perchance they wish in effect to do some things forbidden by the law, they are able by their wealth to have skilled lawyers who can show them how to accomplish the same object by indirect means. The hollow hearted man, the whited sepulcher is the last to violate the law. To support the state and be noisily patriotic is a large part of his stock in trade. As a rule it is only the weak or the extremely conscientious or devoted that violate the law, and it does not follow that these or any other class really intend a wrong or consider it in any such light as their judge, when they commit an act forbidden by the law.
A very large number of acts of individual violence come from sudden feeling and passion, which is purely a physical, or more properly, a mechanical act. Certain motives or feelings operating upon a given brain produce a given result; whereas operating upon another brain, they might produce a very different effect. It is like a body in mechanics operating upon another smaller or larger body. The laws of the universe are not at work in one place and held in abeyance in another. In these cases reason and judgment have no opportunity to act. Reflection and conscience in no wise enter into the affair. Feeling, emotion, passion alone are responsible for the deed. The human feelings as they sweep through that uncharted land the human soul, produce infinitely varied results, like the moving wind, whose sound depends entirely upon the unconscious instrument with which it toys.