But if the fact
was a secret between the sovereign and the subject, the
sovereign, if wholly free from passion, would undoubtedly see
that punishment in such a case was wholly without justification.
On the other hand, there can be no case in which the law-maker
makes certain conduct criminal without his thereby showing a wish
and purpose to prevent that conduct. Prevention would accordingly
seem to be the chief and only universal purpose of punishment.
The law threatens certain pains if you do certain things,
intending thereby to give you a new motive for not doing them. If
you persist in doing them, it has to inflict the pains in order
that its threats may continue to be believed.
If this is a true account of the law as it stands, the law does
undoubtedly treat the individual as a means to an [47] end, and
uses him as a tool to increase the general welfare at his own
expense. It has been suggested above, that this course is
perfectly proper; but even if it is wrong, our criminal law
follows it, and the theory of our criminal law must be shaped
accordingly.
Further evidence that our law exceeds the limits of retribution,
and subordinates consideration of the individual to that of the
public well-being, will be found in some doctrines which cannot
be satisfactorily explained on any other ground.
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