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