afford no sufficient justification for subjecting the offence to such intense {91} suffering, other more serious consequences might easily result from leaving him unpunished. The public indignation might find a vent in some less regular and less discriminating mode of retaliation, like lynching; or, on the other hand, by remaining unsatisfied, the desire might dwindle away from want of nourishment, and the moral standard suffer a corresponding loss. [Footnote 92: On the limited efficiency of punishment as a deterrent, see Ferri, _op. cit._ p. 82 _sq._ On the moral insensibility of the instinctive and habitual criminal, and absence of remorse, see Havelock Ellis, _The Criminal_, p. 124 _sqq._] [Footnote 93: _Cf._ Locke, _Essay concerning Human Understanding_, ii. 28. 12 (_Philosophical Works_, p. 283); Shaftesbury, 'Inquiry concerning Virtue and Merit,' i. 3. 3, in _Characteristicks_, ii. 64.] [Footnote 94: Stephen, _History of the Criminal Law of England_, ii. 81. _Cf._ Shaftesbury, _op. cit._ ii. 64: "As to punishments and rewards, their efficacy is not so much from the fear or expectation which they raise, as from a natural esteem of virtue, and detestation of villainy, which is awaken'd and excited by these publick expressions of the approbation and hatred of mankind in each case."] However, it is not to be believed that, in practice, the infliction of punishment is, or ever will be, regulated merely by considerations of social utility, even within the limits of what is recognised as legitimate by the moral sentiment. The retributive desire is so strong, and appears so natural, that we can neither help obeying it, nor seriously disapprove of its being obeyed. The theory that we have a right to punish an offender only in so far as, by doing so, we promote the general happiness, really serves in the main as a justification for gratifying such a desire, rather than as a foundation for penal practice. Moreover, this theory refers, and pretends to refer, only to outward behaviour--to punishment, not to the emotion from which punishment springs. It condemns the retributive act, not the retributive desire.