en more and more tried for such
separate actions under separate and suitable laws ever since Europe
began to become a civilisation--and until the rare and recent
re-incursions of barbarism in such things as the Indeterminate
Sentence. Of that I shall speak later; it is enough for this argument
to point out the plain facts. It is the plain fact that every savage,
every sultan, every outlawed baron, every brigand-chief has always
used this instrument of the Indeterminate Sentence, which has been
recently offered us as something highly scientific and humane. All
these people, in short, being barbarians, have always kept their
captives captive until they (the barbarians) chose to think the
captives were in a fit frame of mind to come out. It is also the plain
fact that all that has been called civilisation or progress, justice
or liberty, for nearly three thousand years, has had the general
direction of treating even the captive as a free man, in so far as
some clear case of some defined crime had to be shown against him.
All law has meant allowing the criminal, within some limits or other,
to argue with the law: as Job was allowed, or rather challenged, to
argue with God. But the criminal is, among civilised men, tried by one
law for one crime for a perfectly simple reason: that the motive of
the crime, like the meaning of the law, is conceivable to the common
intelligence. A man is punished specially as a burglar, and not
generally as a bad man, because a man may be a burglar and in many
other respects not be a bad man. The act of burglary is punishable
because it is intelligible. But when acts are unintelligible, we can
only refer them to a general untrustworthiness, and guard against them
by a general restraint. If a man breaks into a house to get a piece of
bread, we can appeal to his reason in various ways. We can hang him
for housebreaking; or again (as has occurred to some daring thinkers)
we can give him a piece of bread. But if he breaks in, let us say, to
steal the parings of other people's finger nails, then we are in a
difficulty: we cannot imagine what he is going to do with them, and
therefore cannot easily imagine what we are going to do with him. If a
villain comes in, in cloak and mask, and puts a little arsenic in the
soup, we can collar him and say to him distinctly, "You are guilty of
Murder; and I will now consult the code of tribal law, under which we
live, to see if this practice is not forbidden." Bu