If it be true, as I shall presently try to show, that the general principles of criminal and civil liability are the same, it will follow from that alone that theory and fact agree in frequently punishing those who have been guilty [45] of no moral wrong, and who could not be condemned by any standard that did not avowedly disregard the personal peculiarities of the individuals concerned.  If punishment stood on the moral grounds which are proposed for it, the first thing to be considered would be those limitations in the capacity for choosing rightly which arise from abnormal instincts, want of education, lack of intelligence, and all the other defects which are most marked in the criminal classes.  I do not say that they should not be, or at least I do not need to for my argument.  I do not say that the criminal law does more good than harm.  I only say that it is not enacted or administered on that theory.

There remains to be mentioned the affirmative argument in favor of the theory of retribution, to the effect that the fitness of punishment following wrong-doing is axiomatic, and is instinctively recognized by unperverted minds.  I think that it will be seen, on self-inspection, that this feeling of fitness is absolute and unconditional only in the case of our neighbors.  It does not seem to me that any one who has satisfied himself that an act of his was wrong, and that he will never do it again, would feel the least need or propriety, as between himself and an earthly punishing power alone, of his being made to suffer for what he had done, although, when third persons were introduced, he might, as a philosopher, admit the necessity of hurting him to frighten others.  But when our neighbors do wrong, we sometimes feel the fitness of making them smart for it, whether they have repented or not.  The feeling of fitness seems to me to be only vengeance in disguise, and I have already admitted that vengeance was an element, though not the chief element, of punishment.

[46] But, again, the supposed intuition of fitness does not seem to me to be coextensive with the thing to be accounted for.  The lesser punishments are just as fit for the lesser crimes as the greater for the greater.  The demand that crime should be followed by its punishment should therefore be equal and absolute in both.  Again, a malum prohibitum is just as much a crime as a malum in se.  If there is any general ground for punishment, it must apply to one case as much as to the other.  But it will hardly be said that, if the wrong in the case just supposed consisted of a breach of the revenue laws, and the government had been indemnified for the loss, we should feel any internal necessity that a man who had thoroughly repented of his wrong should be punished for it, except on the ground that his act was known to others.  If it was known, the law would have to verify its threats in order that others might believe and tremble.  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.