We saw, in speaking of punishment as retributive, in what sense it can and cannot rest upon a judgment imputing moral guilt. Of degrees of moral guilt as manifested in the particular acts of individuals, the State, like all of us, is necessarily ignorant. But this is not to say that punishment is wholly divorced from a just moral sentiment. Undoubtedly it implies and rests upon a disapproval of that hostile attitude to the system of rights which is implied in the realised intention constituting the violation of right. Though in practice the distinction between civil and criminal law in England carries out no thoroughly logical demarcation, yet it is true on the whole to say with Hegel that, in the matter of a civil action, there is no violation of right as such, but only a question in whom a certain right resides; while in a matter of criminal law there is involved an infraction of right as such, which by implication is a denial of the whole sphere of law and order. This infraction the general conscience disapproves, and its disapproval is embodied in a forcible dealing with the offender, however that dealing may be graduated by other considerations. I may touch here on an interesting point of detail, following Green. If punishment is essentially {231} graduated according to its deterrent power, and not according to moral guilt, how does it come to pass that “extenuating circumstances” are allowed to influence sentences? That they do so really, if not nominally, even in England, there can be no doubt. Is it not that they indicate a less degree of wickedness in the offender than the offence in question would normally presuppose? It would seem that judges themselves are sometimes under this impression. But it may well be that they act under a right instinct and assign a wrong reason. For it is impossible to get over the fact that moral iniquity is something which cannot be really estimated. The true reason for allowing circumstances which change the character of the act to influence the sentence is that, in changing its character, they may take it out of the class of offences from which men need to be deterred by a recognised amount of severity. If a man is starving and steals a turnip, his offence, being so exceptionally conditioned, does not threaten the general right of property, and does not need to be associated with any high degree of terror in order to protect that right. A man who steals under no extraordinary pressure of need does what might become a common practice if not associated with as much terror as is found by experience to deter men from theft.