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then, it seems to me that men have a sense of the fitness of suffering to sin, of a fitness both in the gross and in proportion; that so far as the world is arranged to realize in fact this fitness in thought, it is right; and that so far as it fails of such arrangement, it is wrong, except so far as it is a place cf trial or probation; and consequently, that a duty is laid upon us to make this relationship of sin to suffering as real and as actual and as exact in proportion as it is possible to be made. This is the moral root of the whole doctrine of punishment.

"If this be the true view, some things become clear to us. First, we see that in the apportionment of penalties, we have to regard primarily and directly the moral nature of the crime, and to assign pain and suffering as nearly as we can to the enormity of the sin. . . . It follows again, from what I have said, that reformation, repression, example, however important they may be in themselves, are only secondary or collateral to the main idea of punishment."

I am convinced of the soundness of the view which is so powerfully and eloquently expressed by Sir Edward Fry in the passage of his essay which I have just quoted. It is the view of a writer who has both wide sympathies and wide learning, who has won high judicial distinction in England, first as a Judge of the High Court of Justice, and afterwards as a Lord Justice of Appeal, and who, since his retirement from the Bench, has continued to take an active part in public life as a Privy Councillor and as a Magistrate.

Let me pause for a moment to anticipate a possible criticism of the theory. It may, perhaps, be objected that, if the central idea of punishment is the fitness of suffering to sin, the State ought to punish all sinful acts; whereas, in fact, as I pointed out early in this address, the State does nothing of the kind, but leaves some sins, although socially injurious, such, eg, as profligacy and avarice, unwhipt of justice.

To this I would reply that the policy of penal legislation

is properly affected by considerations which have no place in the administration of punishment where the law has enacted it. The statesman may rightly hold his hand, because he sees that the sinful conduct which he is invited to visit with statutory punishment, will not, in practice, admit of that distinct proof of a definite act of criminality which would alone justify a conviction. Or he may see that the investigation of the sinful conduct must generally involve an inquisition into private or family life or an interference with personal liberty which public opinion will resent as a greater evil than the sin itself. In human affairs, moreover, there is no principle, I believe, however cherished, which, in practical application, is not necessarily subject to limitations. The great principle of liberty, which we love so well on both sides of the Atlantic, is no exception. Look at life in the most free civilized country, and you will see freedom of personal action "cribbed, cabined, and confined" on many sides by the needs of public order, the respect we owe to our parents and to the State, and the regard we rightly pay to the wants and the susceptibilities of our neighbours. Lastly, what logic is there in refusing to recognize that the central idea of punishment, wherever the law does enact punishment, is the fitness of suffering to sin, because there are some sins which the law does not punish?

The theory of the central idea of punishment which I am advocating, naturally would, of course, find no favour with the determinist school of criminologists, or with those who place the origin of the right of punishment in the right of defence. Professor Lombroso, in his work Le Crime, Causes et Remédes (Paris, 1899), espouses, if I follow his argument correctly, the right of defence theory, and remarks: "Quelques legislateurs pretendent que le criminel doit expier son crime. Mais la conception de l'expiation est ecclésiastique." The learned writer seems to assume that an ecclesiastical origin is in itself a sufficient condemnation. In

truth, however, the idea of the moral fitness of suffering to sin had been grasped by the wisest of the ancients, centuries before the birth of Christianity. The sinner himself, for his own sake, ought in the judgment of the Platonic Socrates, as Emerson remarks in his Representative Men (p. 61), to covet punishment. His salvation lies in the application of the principle of the fitness of suffering to sin. So in the Gorgias, Socrates is represented as saying, "In my opinion the unjust man or doer of unjust actions is miserable in any case-more miserable, however, if he be not punished and does not meet with retaliation at the hands of God and man;” and, a little further on in the same dialogue, "If a man, or any one about whom he cares, does wrong, he ought of his own accord to go where he will be immediately punished; he will run to the judge, as he would to the physician, in order that the disease of injustice may not be rendered chronic and become the incurable cancer of the soul."

I should have liked, for your sake, had time permitted, to have quoted from Sir Edward Fry's admirable essay the passages in which he disposes of the title of either the theory of the right of defence, or the reformatory theory, or the utilitarian theory, which is commonly connected with the great name of Bentham, to be considered as the true theory of judicial punishment. Of the last-named he observes that it is the inevitable conclusion that punishment is an evil to be inflicted only for the prevention of greater evils. “You have nothing to do with the past offence except as an occasion for preventing other crimes. You have nothing to do with the offender except as a whipping-boy caught for the public good." Time, however, compels me to hasten on, for, as he points out, and as is indicated in the passage which I have quoted, while the primary principle of punishment is the adaptation of suffering to sin, society has other *Jowett's Plato, vol. ii. pp. 345, 355.

and collateral ends in its infliction, and punishment, in practice, is not a simple idea; and I desire, before concluding this paper, to say a few words in reference to the secondary and distinct principles which, in practice, are involved in punishment, viz. the prevention of crime in the offender and in others, and the reformation of the criminal himself.

The needful measure of punishment, viewed in relation to repression, will obviously vary in different localities and at different times. Circumstances of the particular epoch or the particular place may largely affect both the degree of mischief to the community which the commission of a certain class of crime may cause, and the degree of the temptation to the commission of it. Essential requisites, for the purpose of repression, which must always and everywhere be provided, are definiteness and certainty of punishment, and, as far as possible, and with due allowance for the various circumstances of extenuation or aggravation which cases in the same class present, its systematic application. The wise legislator provides a large latitude in punishment, and confides its assessment to the judge and not to the jury. In my own country, this century has witnessed, both in the statutory enactments for the punishment of crime and in their judicial application, a happy relaxation of severity in regard to many kinds of offences and especially in regard to offences against property. Several causes have combined to foster the change. Increased charity and humanity of feelinggreater tenderness for human life and scrupulousness in regard to the infliction of pain-the general sense of security, both in respect of the prevention and detection of crime which the development of an effective police has created; and, in regard to offences against property without violence, the tendency to indulgence towards occasional depredation which accompanies the easier acquisition of things which minister to life's comfort;-all these things have, I think, had a part in

the reform. Beyond and above them can be traced the operation of a juster and more discriminating appraisement of moral guilt, and of the conviction of experience that excessive severity in punishment defeats its own end, by tempting juries to find verdicts which are not justified by the facts. I rejoice to say that the gradual increase of lenity has, upon the whole, been accompanied by a decrease of serious crime. According to the last available statisticsthe Criminal Statistics for 1897-there has been, upon the whole, a continuous and steady decrease of indictable offences during the last twenty years, and the figures for 1897 are actually lower than the figures for any year since 1860, with the exception of the years 1875 and 1896. The annual average for the five years ending with 1897 is 11,633 for cases tried on indictment, and 53,174 for all indictable casesnumbers which are much lower than for the three previous five-year periods, but higher than the actual figures of 1897. The one dark spot in our statistics is a distinct tendency to increase in the case of offences against the person and against property with violence. The increase is mainly due to the latter class of crime, which in my view, is generally to be regarded as the less injurious, and it may, in part, be traced to the modern exhibition of lenity towards the habitual criminal who makes a profession of crime.

If there were to be any continuous and serious increase of crimes of violence against the person, as I earnestly hope there will not be, it would tend to add weight to the opinion now held by many thoughtful and humane persons, that the power to award what Bentham would designate characteristic punishment, viz. moderate corporal chastisementshould be given by the law whenever the convict has been guilty of cruel violence to the person, deliberately inflicted, and causing serious bodily hurt, or of the brutal violation of a woman or a child. I do not wish to be understood as expressing here any judgment of my own upon the point,

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