But there remains the great number of mediocre natures whose sympathy with their fellow men, the emotional foundation of the subjective impulse to Morality, is only slightly developed, who have a superficial veneer of Morality, who act honourably out of prudence, but who would feel no repugnance towards perpetrating profitable misdeeds, if they were certain that they would incur no risk. These insipid characters whose emotional temperature oscillates round about freezing point and who are incapable of great excitement, of passion, would see no reason to resist any temptation, to disregard any favourable opportunity, if the penal code, the judge and the policeman did not warn them to be careful. For this kind of man the penal sanction is really a useful and perhaps an indispensable means of prevention, and it has been thought out and developed by the community with a view to such people.
Not content with theoretical considerations, people have also appealed to practical experience to test the theory of intimidation. In some countries capital punishment was either legally abolished or tacitly suppressed, the judges either refraining from pronouncing the sentence on the prisoner or the head of the state, when appealed to, commuting it by an act of pardon to loss of liberty. Statistics seemed to show that serious crimes meriting the death penalty increased, and capital punishment was reintroduced or the practice of systematic pardons was abandoned, with the alleged result that the worst crimes grew less numerous. I express myself doubtfully, because I do not think that the statistics were sufficiently conclusive. They embraced too small a number of cases and too short a period of time. It cannot be conclusively proved that the abolition of the death penalty resulted in an increase of capital crimes; but it is certain that crimes were never more frequent or more horrible than in the times when criminal justice was most cruel and made use of the most terrible sanctions. Up to the dawn of modern times legal torture was administered, at every street corner there were gallows, the poor wretch under sentence of death was pinched with red-hot pincers, the executioner tore the flesh from his bones, poured boiling pitch over him, cut out his tongue, hacked off his hands, broke him on the wheel or burnt him alive; executions were a sort of public entertainment or popular holiday, and efforts were made to attract as many spectators as possible; every inhabitant of one of the larger towns was familiar from childhood with the horrid spectacle of mutilated human bodies writhing in torture, and there rang in his ears the echo of the screams of pain and of the shrill death rattle of the victims. But these impressions were so far from intimidating the gaping crowd that many hurried from the place of execution to commit the most execrable crimes, the punishment of which they had just witnessed; consequently punishments have gradually been made less cruel, and the public is excluded from executions, which clearly indicates a decisive rejection of the theory of intimidation.