OF CRIMES AND PUNISHMENTS
LIMITATIONS OF THE DOCTRINE OF PUNISHMENT WHICH RESULT FROM THE PRINCIPLES OF MORALITY
The subject of punishment is perhaps the most fundamental in the science of politics. Men associated for the sake of mutual protection and benefit. It has already appeared that the internal affairs of such associations are of an inexpressibly higher importance than their external.(1*) It has appeared that the action of society, in conferring rewards, and superintending opinion, is of pernicious effect.(2*) Hence it follows that government, or the action of society in its corporate capacity, can scarcely be of any utility except so far as it is requisite for the suppression of force by force; for the prevention of the hostile attack of one member of the society, upon the person or property of another, which prevention is usually called by the name of criminal justice, or punishment.
Before we can properly judge of the necessity or urgency of this action of government, it will be of some importance to consider the precise import of the word punishment. I may employ force to counteract the hostility that is actually committing on me. I may employ force to compel any member of the society to occupy the post that I conceive most conducive to the general advantage, either in the mode of impressing soldiers and sailors, or by obliging a military officer, or a minister of state, to accept, or retain his appointment. I may put a valuable man to death for the common good, either because he is infected with a pestilential disease, or because some oracle has declared it essential to the public safety. None of these, though they consist in exertion of force for some moral purpose, comes within the import of the word punishment. Punishment is also often used to signify the voluntary infliction of evil upon a vicious being, not merely because the public advantage demands it, but because there is apprehended to be a certain fitness and propriety in the nature of things that render suffering, abstractedly from the benefit to result, the suitable concomitant of vice.
The justice of punishment however, in this import of the word, can only be a deduction from the hypothesis of free will, if indeed that hypothesis will sufficiently support it; and must be false, if human actions are necessary. Mind, as was sufficiently apparent when we treated of that subject,(3*) is an agent in no other sense than matter is an agent. It operates and is operated upon, and the nature, the force and line of direction of the first, is exactly in proportion to the nature, force and line of direction of the second. Morality, in a rational and designing mind, is not essentially different from morality in an inanimate substance. A man of certain intellectual habits is fitted to be an assassin; a dagger of a certain form is fitted to be his instrument. The one or the other excites a greater degree of disapprobation, in proportion as its fitness for mischievous purposes appears to be more inherent and direct. I view a dagger, on this account, with more disapprobation than a knife, which is perhaps equally adapted for the purposes of the assassin; because the dagger has few or no beneficial uses to weigh against those that are hurtful, and because it has a tendency by means of association to the exciting of evil thoughts. I view the assassin with more disapprobation than the dagger because he is more to be feared, and it is more difficult to change his vicious structure, or to take from him his capacity to injure. The man is propelled to act by necessary causes and irresistible motives, which, having once occurred, are likely to occur again. The dagger has no quality adapted to the contraction of habits, and, though it have committed a thousand murders, is not more likely (unless so far as those murders, being known, may operate as a slight associated motive with the possessor) to commit murder again. Except in the articles he specified, the two cases are exactly parallel. The assassin cannot help the murder he commits, any more than the dagger.
These arguments are merely calculated to set in a more perspicuous light a principle which is admitted by many by whom the doctrine of necessity has never been examined; that the only measure of equity is utility, and whatever is not attended with any beneficial purpose is not just. This is so evident that few reasonable and reflecting minds will be found inclined to deny it. Why do I inflict suffering on another? If neither for his own benefit nor the benefit of others, can I be right? Will resentment, the mere indignation and horror I have conceived against vice, justify me in putting a being to useless torture? 'But suppose I only put an end to his existence.' What, with no prospect of benefit either to himself or others? The reason in mind more easily reconciles itself to this supposition is that we conceive existence to be less a blessing than a curse to a being incorrigibly vicious. But, in that case, the supposition does not fall within the terms of the question: I am in reality conferring a benefit. It has been asked, 'If we conceive to ourselves two beings, each of them solitary, but the first virtuous, and the second vicious, the first inclined to be the highest acts of benevolence, if his situation were changed for the social the second to malignity, tyranny and injustice, do we not eel that the first is entitled to felicity in preference to the second? If there be any difference in the question, it is wholly caused by the extravagance of the supposition. No being can be either virtuous, or vicious, who has no opportunity of influencing the happiness of others. He may indeed, though now solitary, recollect or imagine a social state; but this sentiment, and the propensities it generates can scarcely be vigorous, unless he have hopes of being at some future time, restored to that state. The true solitaire cannot be considered as a moral being unless the morality we contemplate be that which has relation to his own permanent advantage. But, if that be our meaning punishment, unless for reform, is peculiarly absurd. His conduct vicious, because it has a tendency to render him miserable: shall we inflict calamity upon him, for this reason only, because he has already inflicted calamity upon himself? It is difficult for us to imagine to ourselves a solitary intellectual being, whom no future accident shall ever render social. It is difficult for us to separate, even an idea, virtue and vice from happiness and misery, and, of consequence, not to imagine that, when we bestow a benefit upon virtue, we bestow it where it will turn to account; and when we bestow a benefit upon vice, we bestow it where it will be unproductive. For these reasons, e question of desert, as it relates to a solitary being, will always have a tendency to mislead and perplex.
It has sometimes been alleged that the course of nature has annexed suffering to vice, and has thus led us to the idea of punishment here referred to. Arguments of this sort should be listened to with great caution. It was by reasonings of a similar nature that our ancestors justified the practice of religious persecution: 'Heretics and unbelievers are the objects of God's indignation; it must therefore be meritorious in us to maltreat those whom God has cursed.' We know too little of the system of the universe are too liable to error respecting it, and see too small a portion, to entitle us to form our moral principles upon an imitation of what we conceive to be the course of nature.
Thus it appears, whether we enter philosophically into the principle of human actions, or merely analyse their ideas of rectitude and justice which have the universal consent of mankind, that, in the refined and absolute sense in which that term has frequently been employed, there is no such thing as desert; in other words, that it cannot be just that we should inflict suffering on any man, except far as it tends to good. Hence it follows also that punishment, in the last of the senses enumerated towards the beginning of this chapter, by no means accords with any sound principles of reasoning. It is right that I should inflict suffering, in every case where it can be clearly shown that such infliction will produce an overbalance of good. But this infliction bears no reference to the mere innocence or guilt of the person upon whom it is made. An innocent man is the proper subject of it, if it tend to good. A guilty man is the proper subject of it under no other point of view. To punish him, upon any hypothesis, for what is past and irrecoverable, and for the consideration of that only, must be ranked among the most pernicious exhibitions of an untutored barbarism. Every man upon whom discipline is employed is to be considered as to the purpose of this discipline as innocent. The only sense of the word punishment that can be supposed to be compatible with the principles of the present work is that of pain inflicted on a person convicted of past injurious action, for the purpose of preventing future mischief.
It is of the utmost importance that we should bear these ideas constantly in mind, during our examination of the theory of punishment. This theory would, in the past transactions of mankind, have been totally different if they had divested themselves of the emotions of anger and resentment; if they had considered the man who torments another for what he has done as upon a par with the child who beats the table; if they had conjured up to their imagination, and properly estimated, the man who should shut up in prison and periodically torture some atrocious criminal, from the mere consideration of the abstract congruity of crime and punishment, without a possible benefit to others or to himself; if they had regarded punishment as that which was to be regulated solely, by a dispassionate calculation of the future, without suffering the past, on its own account, for a moment to enter into the proceeding.
1. Book V, Chap. XX.
2. Book V, Chap. XII; Book VI, throughout.
3. Book IV, Chap. VIII.
GENERAL DISADVANTAGES OF PUNISHMENT
Having thus endeavoured to show what denominations of punishment justice, and a sound idea of the nature of man, would invariably proscribe, it belongs to us, in the further prosecution of the subject, to consider merely that coercion, which it has been supposed right to employ, against persons convicted of past injurious action, for the purpose of preventing future mischief. And here we will, first, recollect what is the quantity of evil which accrues from all such coercion; and secondly, examine the cogency of the various reasons by which it is recommended. It will not be possible to avoid the repetition of some of the reasons which occurred in the preliminary discussion of the exercise of private judgement.(1*) But those reasonings will now be extended, and will perhaps derive additional advantage from a fuller arrangement.
It is commonly said 'that no man ought to be compelled, in matters of religion, to act contrary to the dictates of his conscience. Religion is a principle which the practice of all ages has deeply impressed upon the human mind. He that discharges what his apprehensions prescribe to him on the subject stands approved to the tribunal of his own mind, and, conscious of rectitude in his intercourse with the author of nature, cannot fail to obtain the greatest of those advantages, whatever may be their amount, which religion has to bestow. It is in vain that I endeavour, by persecuting statutes, to compel him to resign a false religion for a true. Arguments may convince, but persecution cannot. The new religion, which I oblige him to profess contrary to his own conviction, however pure and holy it may be in its own nature, has no benefits in store for him. The sublimest worship becomes transformed into a source of depravity when it is not consecrated by the testimony of a pure conscience. Truth is the second object in this respect, integrity of heart is the first: or rather, a proposition that, in its abstract nature, is truth itself converts into rank falsehood and mortal poison, if it be professed with the lips only, and abjured by the understanding. It is then the foul garb of hypocrisy. Instead of elevating the mind above sordid temptations, it perpetually reminds the worshipper of the degrading subjection to which he has yielded. Instead of filling him with sacred confidence, it overwhelms him with confusion and remorse.'
The inference that has been made from these reasonings is 'that criminal law is eminently misapplied in affairs of religion, and that its true province is civil misdemeanours'. But this distinction is by no means so satisfactory and well founded as at first sight it may appear.(2*) Is it not strange that men should have affirmed religion to be the sacred province of conscience, while moral duty is to be left undefined to the decision of the magistrate? Is it of no consequence whether I be the benefactor of my species, or their bitterest enemy? whether I be an informer, a robber, or a murderer? whether I be employed, as a soldier, to extirpate my fellow beings, or, as a citizen, contribute my property to their extirpation? whether I declare the truth, with that firmness and unreserve which an ardent philanthropy will not fail to inspire, or suppress science, lest I be convicted of blasphemy, and fact, lest I be convicted of a libel? whether I contribute my efforts for the furtherance of political improvement, or quietly submit to the exile of a prince of whose claims I am an advocate, or to the subversion of liberty, the most valuable of all human possessions? Nothing can be more clear than that the value of religion, or of any other species of opinion, lies in its moral tendency. If I am to hold as of no account the civil power, for the sake of that which is the means, how much more when it rises in contradiction to the end?
Of all human concerns morality is the most interesting. It is the constant associate of all our transactions: there is no situation in which we can be placed, no alternative that can be presented to our choice, respecting which duty is silent. 'What is the standard of morality and duty?' Justice. Not the arbitrary decrees that are in force in a particular climate; but those laws of reason that are equally obligatory wherever man is to be found. There is an obvious distinction between those particulars in each instance which constitute the permanent nature of the case before us, and those interpositions of a peremptory authority to which it may be prudent to submit, but which cannot alter our ideas of the conduct to which independent man ought to adhere. What then are the consequences that will result from the obedience of compulsion, and not of the understanding?
No principle of moral science can be more obvious and fundamental than that the motive by which we are induced to an action constitutes an essential part of its character. This idea has perhaps sometimes been carried too far. A good motive is of little value when it is not joined to a salutary exertion. But, without a good motive, the most extensively useful action that ever was performed can contribute little to the improvement or honour of him that performs it. We owe him no respect if he has been induced to perform it by ideas of personal advantage, or the influence of a bribe. It is, in some respects, worse, if the motive that governed him were the sentiment of fear. If we hold in any estimation the attributes of man, if we desire the improvement of our species, we ought particularly to desire that they should be led in the path of usefulness by generous and liberal considerations, that their obedience should be the obedience of the heart, and not that of a slave.
Nothing can be of higher importance to the improvement of the human mind than that, whatever be the conduct we may be compelled to pursue, we should have distinct and accurate notions of the merits of every moral question in which we may be concerned. In all doubtful questions, there are but two criterions possible, the decisions of other men's wisdom, and the decisions of our own understanding. Which of these is conformable to the nature of man? Can we surrender our own understanding? However we may strain after implicit faith, will not conscience in spite of ourselves whisper us, 'The decree is equitable, and this is founded in mistake?' Will there not be in the minds of the votaries of superstition a perpetual dissatisfaction, a desire to believe what is dictated to them, accompanied with a want of that in which belief consists, evidence and conviction? If we could surrender our understanding, what sort of beings should we become?
The direct tendency of coercion is to set our understanding and our fears, our duty and our weakness, at variance with each other. Coercion first annihilates the understanding of the subject upon whom it is exercised, and then of him who employs it. Dressed in the supine prerogatives of a master, he is excused from cultivating the facilities of a man. What would not man have been, long before this, if the proudest of us had no hopes but in argument, if he knew of no resort beyond, if he were obliged to sharpen his faculties, and collect his powers, as the only means of effecting his purposes?
Let us reflect a little upon the species of influence that coercion employs. It avers to its victim that he must necessarily be in the wrong, because I am more vigorous or more cunning than he. Will vigour and cunning be always on the side of truth? It appeals to force, and represents superior strength as the standard of justice. Every such exertion implies in its nature a species of contest. The contest is often decided before it is brought to open trial, by the despair of one of the parties. The ardour and paroxysm of passion being over, the offender surrenders himself into the hands of his superiors, and calmly awaits the declaration of their pleasure. But it is not always so. The depredator that by main force surmounts the strength of his pursuers, or by stratagem and ingenuity escapes their toils, so far as this argument is valid, proves the justice of his cause. Who can refrain from indignation when he sees justice thus miserably prostituted? Who does not feel, the moment the contest begins, the full extent of the absurdity that the appeal includes? The magistracy, the representative of the social system, that declares war against one of its members, in behalf of justice, or in behalf of oppression, appears almost equally, in both cases, entitled to our censure. In the first case, we see truth throwing aside her native arms and her intrinsic advantage, and putting herself upon a level with falsehood. In the second, we see falsehood confident in the casual advantage she possesses, artfully extinguishing the new born light that would shame her in the midst of her usurped authority. The exhibition in both is that of an infant crushed in the merciless grasp of a giant.
No sophistry can be more gross than that which pretends to bring the parties to an impartial hearing. Observe the consistency of this reasoning! We first vindicate political coercion, because the criminal has committed an offence against the community at large, and then pretend, while we bring him to the bar of the community, the offended party, that we bring him before an impartial umpire. Thus in England, the king by his attorney is the prosecutor, and the king by his representative is the judge. How long shall such inconsistencies impose on mankind? The pursuit commenced against the supposed offender is the posse comitatus, the armed force of the whole, drawn out in such portions as may be judged necessary; and, when seven millions of men have got one poor, unassisted individual in their power, they are then at leisure to torture or to kill him, and to make his agonies a spectacle to glut their ferocity.
The argument against political coercion is equally strong against the infliction of private penalties, between master and slave, and between parent and child. There was, in reality, not only more of gallantry, but more of reason in the Gothic system of trial by duel than in these. The trial of force is over in these, as we have already said, before the exertion of force is begun. All that remains is the leisurely infliction of torture, my power to inflict it being placed in my joints and my sinews. This whole argument seems liable to an irresistible dilemma. The right of the parent over his offspring lies either in his superior strength, or his superior reason. If in his strength, we have only to apply this right universally in order to drive all morality out of the world. If in his reason, in that reason let him confide. It is a poor argument of my superior reason that I am unable to make justice be apprehended and felt, in the most necessary cases, without the intervention of blows.
Let us consider the effect that coercion produces upon the mind of him against whom it is employed. It cannot begin with convincing; it is no argument. It begins with producing the sensation of pain, and the sentiment of distaste. It begins with violently alienating the mind from the truth with which we wish it to be impressed. It includes in it a tacit confession of imbecility. If he who employs coercion against me could mold me to his purposes by argument, no doubt he would. He pretends to punish me because his argument is strong; but lie really punishes me because his argument is weak.
1. Book II, Chap. VI.
2. Book II, Chap. VI.
OF THE PURPOSES OF PUNISHMENT
Let us proceed to consider the three principal ends that punishment proposes to itself, restraint, reformation and example. Under each of these heads the arguments on the affirmative side must be allowed to be cogent, not irresistible. Under each of them considerations will occur that will oblige us to doubt universally of the propriety of punishment.
The first and most innocent of all the classes of coercion is that which is employed in repelling actual force. This has but little to do with any species of political institution, but may nevertheless deserve to be first considered. In this case I am employed (suppose, for example, a drawn sword is pointed at my own breast or that of another, with threats of instant destruction) in preventing a mischief that seems about inevitably to ensue. In this case there appears to be no time for experiments. And yet, even here, a strict research will suggest to us important doubts. The powers of reason and truth are yet unfathomed. That truth which one man cannot communicate in less than a year, another can communicate in a fortnight. The shortest term may have an understanding commensurate to it. When Marius said, with a stern look and a commanding countenance, to the soldier that was sent down into his dungeon to assassinate him, 'Wretch, have you the temerity to kill Marius I' and with these few words drove him to flight; it was that the grandeur of the idea conceived in his own mind made its way with irresistible force to the mind of his executioner. He had no arms for resistance; he had no vengeance to threaten; he was debilitated and deserted; it was by the force of sentiment only that he disarmed his destroyer. If there were falsehood and prejudice mixed with the idea communicated, in this case, can we believe that truth is not still more powerful? It would be well for the human species if they were all, in this respect, like Marius, all accustomed to place an intrepid confidence in the single energy of intellect. Who shall say what there is that would be impossible to men thus bold, and actuated only by the purest sentiments? Who shall say how far the whole species might be improved, did they cease to respect force in others, and did they refuse to employ it for themselves?
The difference however between this species of coercion, and the species which usually bears the denomination of punishment, is obvious. Punishment is employed against an individual whose violence is over. He is, at present, engaged in no hostility against the community, or any of its members. He is quietly pursuing, it may be, those occupations which are beneficial to himself, and injurious to none. Upon what pretence is this man to be the subject of violence?
For restraint. Restraint from what? 'From some future injury which is to be feared lie will commit.' This is the very argument which has been employed to justify the most execrable tyrannies. By what reasonings have the inquisition, the employment of spies, and the various kinds of public censure directed against opinion been vindicated By recollecting that there is an intimate connection between men's opinions and their conduct; the immoral sentiments lead, by a very probable consequence, to immoral actions. There is not more reason, in many cases at least, to apprehend that the man who has once committed robbery will commit it again than the man who has dissipated his property at the gaming-table or who is accustomed to profess that, upon any emergency, be will not scruple to have recourse to this expedient. Nothing can be more obvious than that, whatever precautions may be allowable with respect to the future, justice will reluctantly class among these precautions a violence to be committed on my neighbour. Nor it is oftener unjust than it is superfluous. Why not arm myself with vigilance and energy, instead of locking up every man whom my imagination may bid me fear, that I may spend my days in undisturbed inactivity? If communities, instead of aspiring, as they have hitherto done, to embrace a vast territory, and glut their vanity with ideas of empire, were contented with a small district, with a proviso of confederation in cases of necessity, every individual would then live under the public eye; and the disapprobation of his neighbours, a species of coercion not derived from the caprice of men, but from the system of the universe, would inevitably oblige him either to reform or to emigrate. - The sum of the arguments under this head is that all punishment for the sake of restraint is punishment upon suspicion, a species of punishment the most abhorrent to reason, and arbitrary in its application, that can be devised.
The second object which punishment may be imagined to propose to itself is reformation. We have already seen various objections that may be offered to it in this point of view. Coercion cannot convince, cannot conciliate, but on the contrary alienates the mind of him against whom it is employed. Coercion has nothing in common with reason, and therefore can have no proper tendency to the cultivation of virtue. It is true that reason is nothing more than a collation and comparison of various emotions and feelings; but they must be the feelings originally, appropriate to the question, not those which an arbitrary will, stimulated by the possession of power, may annex to it. Reason is omnipotent: if my conduct be wrong, a very simple statement, flowing from a clear and comprehensive view, will make it appear to be such; nor is it probable that there is any perverseness that would persist in vice in the face of all the recommendations with which virtue might be invested, and all the beauty in which it might be displayed.
But to this it may be answered 'that this view of the subject may indeed be abstractedly true, but that it is not true relative to the present imperfection of human faculties. The grand requisite for the reformation and improvement of the human species seems to consist in the rousing of the mind. It is for this reason that the school of adversity has so often been considered as the school of virtue.(1*) In an even course of easy and prosperous circumstances, the faculties sleep. But, when great and urgent occasion is presented, it should seem that the mind rises to the level of the occasion. Difficulties awaken vigour and engender strength; and it will frequently happen that the more you check and oppress me, the more will my faculties swell, till they burst all the obstacles of oppression.'
The opinion of the excellence of adversity is built upon a very obvious mistake. If we will divest ourselves of paradox and singularity, we shall perceive that adversity is a bad thing, but that there is something else that is worse. Mind can neither exist, nor be improved, without the reception of ideas. It will improve more in a calamitous than a torpid state. A man will sometimes be found wiser at the end of his career, who has been treated with severity than with neglect. But, because severity is one way of generating thought, it does not follow that it is the best.
It has already been shown that coercion, absolutely considered, is injustice. Can injustice be the best mode of disseminating principles of equity and reason? Oppression, exercised to a certain extent, is the most ruinous of all things. What is it but this that has habituated mankind to so much ignorance and vice for so many thousand years? Is it probable that that which has been thus terrible in its consequences should, under any variation of circumstances, be made a source of eminent good? All coercion sours the mind. He that suffers it is practically persuaded of the want of a philanthropy sufficiently enlarged, in those with whom he has intercourse. He feels that justice prevails only with great limitations, and that he cannot depend upon being treated with justice. The lesson which coercion reads to him is, 'Submit to force, and abjure reason. Be not directed by the convictions of your understanding, but by the basest part of your nature, the fear of personal pain, and a compulsory awe of the injustice of others.' It was thus Elizabeth of England and Frederic of Prussia were educated in the school of adversity. The way in which they profited by this discipline was by finding resources in their own minds, enabling them to regard, with an unconquered spirit, the violence employed against them. Can this be the best mode of forming men to virtue? If it be, perhaps it is further requisite that the coercion we use should be flagrantly unjust, since the improvement seems to lie, not in submission, but resistance.
But it is certain that truth is adequate to excite the mind, without the aid of adversity. By truth is here understood a just view of all the attractions of industry, knowledge and benevolence. If I apprehend the value of any pursuit, shall I not engage in it? If I apprehend it clearly, shall I not engage in it zealously? If you would awaken my mind in the most effectual manner, speak to the genuine and honourable feelings of my nature. For that purpose, thoroughly understand yourself that which you would recommend to me, impregnate your mind with its evidence, and speak from the clearness of your view, and with fullness of conviction. Were we accustomed to an education in which truth was never neglected from indolence, or told in a way treacherous to its excellence, in which the preceptor subjected himself to the perpetual discipline of finding the way to communicate it with brevity and force, but without prejudice and acrimony, it cannot be believed but that such an education would be more effectual for the improvement of the mind, than all the modes of angry or benevolent coercion that ever were devised.
The last object which punishment proposes is example. Had legislators confined their views to reformation and restraint, their exertions of power, though mistaken, would still have borne the stamp of humanity. But, the moment vengeance presented itself as a stimulus on the one side, or the exhibition of a terrible example on the other, no barbarity was thought too great. Ingenious cruelty was busied to find new means of torturing the victim, or of rendering the spectacle impressive and horrible.
It has long since been observed that this system of policy constantly fails of its purpose. Further refinements in barbarity produce a certain impression, so long as they are new; but this impression soon vanishes, and the whole scope of a gloomy invention is exhausted in vain.(2*) The reason of this phenomenon is that, whatever may be the force with which novelty strikes the imagination, the inherent nature of the situation speedily recurs, and asserts its indestructible empire. We feet the emergencies to which we are exposed, and we feel, or think we feel, the dictates of reason inciting us to their relief. Whatever ideas we form in opposition to the mandates of law, we draw, with sincerity, though it may be with some mixture of mistake, from the essential conditions of our existence. We compare them with the despotism which society exercises in its corporate capacity; and, the more frequent is our comparison, the greater are our murmurs and indignation against the injustice to which we are exposed. But indignation is not a sentiment that conciliates; barbarity possesses none of the attributes of persuasion. It may terrify; but it cannot produce in us candour and docility. Thus ulcerated with injustice, our distresses, our temptations, and all the eloquence of feeling present themselves again and again. Is it any wonder they should prove victorious?
Punishment for example is liable to all the objections which are urged against punishment for restraint or reformation, and to certain other objections peculiar to itself. It is employed against a person not now in the commission of offence, and of whom we can only suspect that he ever will offend. It supersedes argument, reason and conviction, and requires us to think such a species of conduct our duty, because such is the good pleasure of our superiors, and because, as we are taught by the example in question, they will make us rue our stubbornness if we think otherwise. In addition to this it is to be remembered that, when I am made to suffer as an example to others, I am myself treated with supercilious neglect, as if I were totally incapable of feeling and morality. If you inflict pain upon me, you are either just or unjust, If you be just, it should seem necessary that there should be something in me that makes me the fit subject of pain, either absolute desert, which is absurd, or mischief I may be expected to perpetrate, or lastly, a tendency in what you do to produce my reformation. If any of these be the reason why the suffering I undergo is just, then example is out of the question: it may be an incidental consequence of the procedure, but it forms no part of its principle. It must surely be a very inartificial and injudicious scheme for guiding the sentiments of mankind, to fix upon an individual as a subject of torture or death, respecting whom this treatment has no direct fitness, merely that we may bid others look on, and derive instruction from his misery. This argument will derive additional force from the reasonings of the following chapter. bar
1. Book V, Chap. II.
2. Beccaria, Dei Delitti e delle Pene.
OF THE APPLICATION OF PUNISHMENT
A further consideration, calculated to show not only the absurdity of punishment for example, but the iniquity of punishment in general, is that delinquency and punishment are, in all cases, incommensurable. No standard of delinquency ever has been, or ever can be, discovered. No two crimes were ever alike; and therefore the reducing them, explicitly or implicitly, to general classes, which the very idea of example implies, is absurd. Nor is it less absurd to attempt to proportion the degree of suffering to the degree of delinquency, when the latter can never be discovered. Let us endeavour to clear the truth of these propositions.
Man, like every other machine the operations of which can be made the object of our senses, may, in a certain sense, be affirmed to consist of two parts, the external and the internal. The form which his actions assume is one thing; the principle from which they flow is another. With the former it is possible we should be acquainted; respecting the latter there is no species of evidence that can adequately inform us. Shall we proportion the degree of suffering to the former or the latter, to the injury sustained by the community, or to the quantity of ill intention conceived by the offender? Some philosopher, sensible of the inscrutability of intention, have declared in favour of our attending to nothing but the injury sustained. The humane and benevolent Beccaria has treated this as a truth of the utmost importance, 'unfortunately neglected by the majority of political institutors, and pre served only in the dispassionate speculation of philosophers.(1*)
It is true that we may, in many instances, be tolerably informed respecting external actions, and that there will, at first sight, appear to be no great difficulty in reducing them to general rules. Murder, according to this system, suppose, will be the exertion of any species of action affecting my neighbour so as that the consequences terminate in death. The difficulties of the magistrate are much abridged upon this principle, though they are by no means annihilated. It is well known how many subtle disquisitions, ludicrous or tragical according to the temper with which we view them, have been introduced to determine, in each particular instance, whether the action were or were not the real occasion of the death. It never can be demonstratively ascertained.
But dismissing this difficulty, how complicated is the iniquity of treating all instances alike in which one man has occasioned the death of another? Shall we abolish the imperfect distinctions, which the most odious tyrannies have hitherto thought themselves compelled to admit, between chance-medley, manslaughter and malice prepense? Shall we inflict on the man who, in endeavouring to save the life of a drowning fellow creature, oversets a boat, and occasions the death of a second, the same suffering as on him who, from gloomy and vicious habits, is incited to the murder of his benefactor? In reality, the injury sustained by the community is, by no means, the same as these two cases; the injury sustained by the community is to be measured by the antisocial dispositions of the offender, and, if that were the right view of the subject, by, the encouragement afforded to similar dispositions from his impunity. But this leads us at once from the external action to the unlimited consideration of the intention of the actor. The iniquity of the written laws of society is of precisely the same nature, though not of so atrocious a degree, in the confusion they actually introduce between various intentions, as if this confusion were unlimited. One man shall commit murder to remove a troublesome observer of his depraved disposition, who will otherwise counteract and expose him to the world. A second, because he cannot hear the ingenuous sincerity with which he is told of his vices. A third, from his intolerable envy of superior merit. A fourth, because he knows that his adversary meditates an act pregnant with extensive mischief, and perceives no other mode by which its perpetration can be prevented. A fifth, in defence of his father's life or his daughter's chastity. Each of these men, except perhaps the last, may act either from momentary impulse, or from any of the infinite shades and degrees of deliberation. Would you award one individual punishment to all these varieties of action? Can a system that levels these inequalities, and confounds these differences, be productive of good? That we may render men beneficent towards each other, shall we subvert the very nature of right and wrong? Or is it not this system, from whatever pretences introduced, calculated in the most powerful manner to produce general injury? Can there be a more flagrant injury than to inscribe, as we do in effect, upon our courts of judgement, "This is the Hall of Justice, in which the principles of right and wrong are daily and systematically slighted, and offences of a thousand different magnitudes are confounded together, by the insolent supineness of the legislator, and the unfeeling selfishness of those who have engrossed the produce of the general labour to their particular emolument!"
But suppose, secondly, that we were to take the intention of the offender, and the future injury to be apprehended, as the standard of improvement. This would no doubt be a considerable improvement. This would be the true mode of reconciling punishment and justice, if, for reasons already assigned, they were not, in their own nature, incompatible. It is earnestly to be desired that this mode of administering retribution should be seriously attempted. It is hoped that men will one day, attempt to establish an accurate criterion, and not go on for ever, as they, have hitherto done, with a sovereign contempt of equity and reason. This attempt would lead, by a very obvious process, to the abolition of all punishment.
It would immediately lead to the abolition of all criminal law. An enlightened and reasonable judicature would have recourse, in order to decide upon the cause before them, to no code but the code of reason. They would feel the absurdity of other men's teaching them what they should think, and pretending to understand the case before it happened, better than they who had all the circumstances under their inspection. They would feel the absurdity of bringing every offence to be compared with a certain number of measures previously invented, and compelling it to agree with one of them. But we shall shortly have occasion to return to this topic.(2*)
The great advantage that would result from men's determining to govern themselves, in the suffering to be inflicted, by the motives of the offender, and the future injury to be apprehended, would consist in their being taught how vain and presumptuous it is in them to attempt to wield the rod of retribution. Who is it that, in his sober reason, will pretend to assign the motives that influenced me in any article of my conduct, and upon them to found a grave, perhaps a capital, penalty against me? The attempt would be iniquitous and absurd, even though the individual who was to judge me had made the longest observation of my character, and been most intimately acquainted with the series of my actions. How often does a man deceive himself in the motives of his conduct, and assign to one principle what, in reality, proceeded from another? Can we expect that a mere spectator should form a judgement sufficiently correct, when he who has all the sources of information in his hands is nevertheless mistaken? Is it not to be this hour a dispute among philosophers whether I be capable of doing good to my neighbour for his own sake? 'To ascertain the intention of a man, it is necessary to be precisely informed of the actual impression of the objects upon his senses, and of the previous disposition of his mind, both of which vary in different persons, and even in the same person at different times, with a rapidity commensurate to the succession of ideas, passions and circumstances.'(3*) Meanwhile the individuals whose office it is to judge of this inscrutable mystery are possessed of no previous knowledge, utter strangers to the person accused, and collecting their only materials from the information of two or three ignorant and prejudiced witnesses.
What a vast train of actual and possible motives enter into the history of a man, who has been incited to destroy the life of another? Can you tell how much in these there was of apprehended justice, and how much of inordinate selfishness? How much of sudden passion, and how much of rooted depravity? How much of intolerable provocation, and how much of spontaneous wrong? How much of that sudden insanity which hurries the mind into a certain action by a sort of incontinence of nature, almost without any assignable motive, and how much of incurable habit? Consider the uncertainty of history. Do we not still dispute whether Cicero were more a vain or a virtuous man, whether the heroes of ancient Rome were impelled by vain glory or disinterested benevolence, whether Voltaire were the stain of his species, or their most generous and intrepid benefactor? Upon these subjects moderate men perpetually quote the impenetrableness of the human heart. Will moderate men pretend that we have not an hundred times more evidence upon which to found our judgement in these cases than in that of the man who was tried last week at the Old Bailey? This part of the subject will be put in a striking light if we recollect the narratives that have been published by condemned criminals. In how different a light do they place the transactions that proved fatal to them, from the construction that was put upon them by their judges? And yet these narratives were written under the most awful circumstances, and many of them without the least hope of mitigating their fate, and with marks of the deepest sincerity. Who will say that the judge, with his slender pittance of information, was more competent to decide upon the motives than the prisoner after the severest scrutiny of his own mind? How few are the trials which an humane and just man can read, terminating in a verdict of guilty, without feeling an uncontrollable repugnance against the verdict? If there be any sight more humiliating than all others, it is that of a miserable victim acknowledging the justice of a sentence against which every enlightened spectator exclaims with horror.
But this is not all. The motive, when ascertained, is a subordinate part of the question. The point upon which only society can equitably animadvert, if it had any jurisdiction in the case, is a point, if possible, still more inscrutable inscrutable than that of which we have been treating. A legal inquisition into the minds of men, considered by itself, all rational enquirers have agreed to condemn. What we want to ascertain is not the intention of the offender, but the chance of his offending again. For this purpose we reasonably enquire first into his intention. But, when we have found this, our task is but begun. This is one of our materials, to enable us to calculate the probability of his repeating his offence, or being imitated by others. Was this an habitual state of his mind, or was it a crisis in his history likely to remain an unique? What effect has experience produced on him; or what likelihood is there that the uneasiness and suffering that attend the perpetration of eminent wrong may have worked a salutary change in his mind? Will he hereafter be placed in circumstances that shall impel him to the same enormity? Precaution is, in its own nature, a step in a high degree precarious. Precaution that consists in inflicting injury on another will at all times be odious to an equitable mind. Meanwhile, be it observed that all which has been said upon the uncertainty of crime tends to aggravate the injustice of punishment for the sake of example. Since the crime upon which I animadvert in one man can never be the same as the crime of another, it is as if I should award a grievous penalty against persons with one eye, to prevent any man in future from putting out his eyes by design.
One more argument, calculated to prove the absurdity of the attempt to proportion delinquency and suffering to each other, may be derived from the imperfection of evidence. The veracity of witnesses will, to an impartial spectator, be a subject of continual doubt. Their competence, so far as relates to just observation and accuracy of understanding, will be still more doubtful. Absolute impartiality it would be absurd to expect from them. How much will every word and every action come distorted by the medium through which it is transmitted? The guilt of a man, to speak in the phraseology of law, may be proved either by direct or circumstantial evidence. I am found near to the body of a man newly murdered. I come out of his apartment with a bloody knife in my hand, or with blood upon my clothes. If under these circumstances, and unexpectedly charged with murder, I falter in my speech, or betray perturbation in my countenance, this is in additional proof. Who does not know that there is not a man in England, however blameless a life he may lead, who is secure that he shall not end it at the gallows? This is one of the most obvious and universal blessings that civil government has to bestow. In what is called direct evidence, it is necessary to identify the person of the offender. How many instances are there upon record of persons condemned upon this evidence who, after their death, have been proved entirely innocent? Sir Walter Raleigh, when a prisoner in the Tower, heard some high words accompanied with blows under his window. He enquired of several eye-witnesses, who entered his apartment in succession, into the nature of the transaction. But the story they told varied in such material circumstances that he could form no just idea of what had been done. He applied this to prove the uncertainty of history. The parallel would have been more striking if he had applied it to criminal suits.
But, supposing the external action, the first part of the question to be ascertained, we have next to discover through the same garbled and confused medium the intention. How few men should I choose to entrust with the drawing up a narrative of some delicate and interesting transaction of my life? How few, though, corporally speaking, they were witnesses of what was done, would justly describe my motives, and properly report and interpret my words? Yet, in an affair that involves my life, my fame and future usefulness, I am obliged to trust to any vulgar and casual observer.
A man properly confident in the force of truth would consider a public libel upon his character as a trivial misfortune. But a criminal trial in a court of justice is inexpressibly different. Few men, thus circumstanced, can retain the necessary presence of mind, and freedom from embarrassment. But if they do, it is with a cold and unwilling ear that their tale is heard. If the crime charged against them be atrocious, they are half condemned in the passions of mankind before their cause is brought to a trial. All that is interesting to them is decided amidst the first burst of indignation; and it is well if their story be impartially estimated ten years after their body has mouldered in the grave. Why, if a considerable time elapse between the trial and the execution, do we find the severity of the public changed into compassion? For the same reason that a master, if he do not beat his slave in the moment of resentment, often feels a repugnance to the beating him at all. Not so much, perhaps, as is commonly supposed, from forgetfulness of the offence, as that the sentiments of reason have time to recur, and he feels, in a confused and indefinite manner, the injustice of punishment. Thus every consideration tends to show that a man tried for a crime is a poor deserted individual, with the whole force of the community conspiring his ruin. The culprit that escapes, however conscious of innocence, lifts up his hands with astonishment, and can scarcely believe his senses, having such mighty odds against him. It is easy for a man who desires to shake off an imputation under which he labours to talk of being put on his trial; but no man ever seriously wished for this ordeal who knew what a trial was.
1. Questa è una di quelle palpabili verità, che per una maravigliosa combinazione di circonstanze non sono con decisa sicurezza conosciute, che da alcuni pochi pensatori uomini d'ogni nazione, e d'ogni secolo.' Dei Delitti e delle Pene.
2. Chap. VIII.
3. 'Questa [l'intenzione] dipende dalla impressione attuale degli iggetti, e dalla precedente disposizione della mente: esse variano in tutti gli uomini e in ciascun uomo colla velocissima successione delle idee, delle passioni, e delle circostanze.' He adds, 'Sarebbe dunque necessario formare non solo un codice particolare per ciascun cittadino, ma una nuova legge ad ogni deltitto.' Dei Delitti e delle Pene.
OF PUNISHMENT CONSIDERED AS A TEMPORARY EXPEDIENT
Thus much for the general merits of punishment, considered as an instrument to be applied in the government of men. It is time that we should enquire into the apology which may be offered in its behalf, as a temporary expedient. No introduction seemed more proper to this enquiry than such a review of the subject upon a comprehensive scale; that the reader might be inspired with a suitable repugnance against so pernicious a system, and prepared firmly to resist its admission, in all cases where its necessity cannot be clearly demonstrated.
The arguments in favour of punishment as a temporary expedient are obvious. It may be alleged that 'however suitable an entire immunity in this respect may be to the nature of mind absolutely considered, it is impracticable with regard to men as we now find them. The human species is at present infected with a thousand vices, the offspring of established injustice. They are full of factitious appetites and perverse habits: headstrong in evil, inveterate in selfishness, without sympathy and forbearance for the welfare of others. In time they may become accommodated to the lessons of reason; but at present they would be found deaf to her mandates, and eager to commit every species of injustice.'
One of the remarks that most irresistibly suggest themselves upon this statement is that punishment has no proper tendency to prepare men for a state in which punishment shall cease. It were idle to expect that force should begin to do that which it is the office of truth to finish, should fit men, by severity and violence, to enter with more favourable auspices into the schools of reason.
But, to omit this gross misrepresentation in behalf of the supposed utility of punishment, it is of importance, in the first place, to observe that there is a complete and unanswerable remedy to those evils, the cure of which has hitherto been sought in punishment, that is within the reach of every community, whenever they shall be persuaded to adopt it. There is a state of society, the outline of which has been already sketched,(1*) that, by the mere simplicity of its structure, would lead to the extermination of offence: a state in which temptation would be almost unknown, truth brought down to the level of all apprehensions, and vice sufficiently checked, by the general discountenance, and sober condemnation of every spectator. Such are the consequences that might be expected to spring from an abolition of the craft and mystery of governing; while, on the other hand, the innumerable murders that are daily committed under the sanction of legal forms are solely to be ascribed to the pernicious notion of an extensive territory; to the dreams of glory, empire and national greatness, which have hitherto proved the bane of the human species, without producing entire benefit and happiness to a single individual.
Another observation which this consideration immediately suggests is that it is not, as the objection supposed, by any means necessary that mankind should pass through a state of purification, and be freed from the vicious propensities which ill constituted governments have implanted, before they can be dismissed from the coercion to which they are at present subjected. Their state would indeed be hopeless if it were necessary that the cure should be effected before we were at liberty to discard those practices to which the disease owes its most alarming symptoms. But it is the characteristic of a well formed society, not only to maintain in its members those virtues with which they are already imbued, but to extirpate their errors, and render them benevolent and just to each other. It frees us from the influence of those phantoms which before misled us, shows us our true advantage as consisting in independence and integrity, and binds us, by the general consent of our fellow citizens, to the dictates of reason more strongly than with fetters of iron. It is not to the sound of intellectual health that the remedy so urgently addresses itself as to those who are infected with diseases of the mind. The ill propensities of mankind no otherwise tend to postpone the abolition of coercion than as they prevent them from perceiving the advantages of political simplicity. The moment in which they can be persuaded to adopt any rational plan for this abolition is the moment in which the abolition ought to be effected.
A further consequence that may be deduced from the principles that have been delivered is that a coercion to be employed upon its own members can, in no case, be the duty of the community. The community is always competent to change its institutions, and thus to extirpate offence in a way infinitely more rational and just than that of punishment. If, in this sense, punishment has been deemed necessary as a temporary expedient, the opinion admits of satisfactory refutation. Punishment can at no time, either permanently or provisionally, make part of any political system that is built upon the principles of reason.
But, though, in this sense, punishment cannot be admitted for so much as a temporary expedient, there is another sense in which it must be so admitted. Coercion, exercised in the name of the state upon its respective members, cannot be the duty of the community; but coercion may be the duty of individuals within the community. The duty of individuals, in their political capacity, is, in the first place, to endeavour to meliorate the state of society in which they exist, and to be indefatigable in detecting its imperfections. But, in the second place, it behoves them to recollect that their efforts cannot be expected to meet with instant success, that the progress of knowledge has, in all cases, been gradual, and that their obligation to promote the welfare of society during the intermediate period is certainly not less real than their obligation to promote its future and permanent advantage. Even the future advantage cannot be effectually procured if we be inattentive to the present security. But, as long as nations shall be so far mistaken as to endure a complex government, and an extensive territory, coercion will be indispensably necessary to general security. It is therefore the duty of individuals to take an active share upon occasion in so much coercion, and in such parts of the existing system, as shall be sufficient to counteract the growth of universal violence and tumult. It is unworthy of a rational enquirer to say, 'These things are necessary, but I am not obliged to take my share in them.' If they be necessary, they are necessary for the general welfare; of consequence, are virtuous, and what no just man will refuse to perform.
The duty of individuals is, in this respect, similar to the duty of independent communities upon the subject of war. It is well known what has been the prevailing policy of princes under this head. Princes, especially the most active and enterprising among them, are seized with an inextinguishable rage for augmenting their dominions. The most innocent and inoffensive conduct on the part of their neighbours will not, at all times, be a sufficient security against their ambition. They indeed seek to disguise their violence under plausible pretences; but it is well known that, where no such pretences occur, they are not, on that account, disposed to relinquish the pursuit. Let us imagine then a land of freemen invaded by one of these despots. What conduct does it behove them to adopt? We are not yet wise enough to make the sword drop out of the hands of our oppressors, by the mere force of reason. Were we resolved, like quakers, neither to oppose nor, where it could be avoided, to submit to them, much bloodshed might perhaps be prevented: but a more lasting evil would result. They would fix garrisons in our country, and torment us with perpetual injustice. Supposing it were even granted that, if the invaded nation should demean itself with unalterable constancy, the invaders would become tired of their fruitless usurpation, it would prove but little. At present we have to do, not with nations of philosophers, but with nations of men whose virtues are alloyed with weakness, fluctuation and inconstancy. At present it is our duty to consult respecting the procedure which, to such nations, may be attended with the most favourable result. It is therefore proper that we should choose the least calamitous mode of obliging the enemy speedily to withdraw himself from our territories.
The case of individual defence is of the same nature. It does not appear that any advantage can result from my forbearance, adequate to the disadvantages of suffering my own life, or that of another, a peculiarly valuable member of the community, as it may happen, to become a prey to the first ruffian who inclines to destroy it. Forbearance, in this case, will be the conduct of a singular individual, and its effect may very probably be trifling. Hence it appears that I ought to arrest the villain in the execution of his designs, though at the expense of a certain degree of coercion.
The case of an offender who appears to be hardened in guilt, and to trade in the violation of social security, is clearly parallel to these. I ought to take up arms against the despot by whom my country is invaded, because my capacity does not enable me by arguments to prevail on him to desist, and because my countrymen will not preserve their intellectual independence in the midst of oppression. For the same reason I ought to take up arms against the domestic spoiler, because I am unable either to persuade him to desist, or the community to adopt a just political institution by means of which security might be maintained consistently with the abolition of punishment.
To understand the full extent of this duty, it is incumbent upon us to remark that anarchy as it is usually understood , and a well conceived form of society without government, are exceedingly different from each other. If the government of Great Britain were dissolved tomorrow, unless that dissolution were the result of consistent and digested views of political truth previously disseminiated among the inhabitants, it would be very far from leading to the abolition of violence. Individuals, freed from the terrors by which they had been accustomed to be restrained, and not yet placed under the happier and more rational restraint of public inspection, or convinced of the wisdom of reciprocal forbearance, would break out into acts of injustice, while other individuals, who desired only that this irregularity should cease, would find themselves obliged to associate for its forcible suppression. We should have all the evils and compulsory restraint to a regular government, at the same time that we were deprived of that tranquillity and leisure which are its only advantages.
It may not be useless in this place to consider, more accurately than we have hitherto done, the evils of anarchy. Such a review may afford us a criterion by which to discern, as well the comparative value of different institutions, as the precise degree of coercion which is required for the exclusion of universal violence and tumult.
Anarchy, in its own nature, is an evil of short duration. The more horrible are the mischiefs it inflicts, the more does it hasten to a close. But it is nevertheless necessary that we should consider both what is the quantity of mischief it produces in a given period, and what is the scene in which it promises to close. The first victim that is sacrificed at its shrine is personal security. Every man who has a secret foe ought to dread the dagger of that foe. There is no doubt that, in the worst anarchy, multitudes of men will sleep in happy obscurity. But woe to him who, by whatever means, excites the envy, the jealousy or the suspicion of his neighbour! Unbridled ferocity instantly marks him for its prey. This is indeed the principal evil of such a state, that the wisest, the brightest, the most generous and bold will often be most exposed to an immature fate. In such a state we must bid farewell to the patient lucubrations of the philosopher, and the labour of the midnight oil. All is here, like the society in which it exists, impatient and headlong. Mind will frequently burst forth, but its appearance will be like the coruscations of the meteor, not like the mild and equable illumination of the sun. Men who start forth into sudden energy will resemble in temper the state that brought them to this unlooked for greatness. They will be rigorous, unfeeling and fierce; and their ungoverned passions will often not stop at equality, but incite them to grasp at power.
With all these evils, we must not hastily conclude that the mischiefs of anarchy are worse than those which government is qualified to produce. With respect to personal security, anarchy is perhaps a condition more deplorable than despotism; but then it is to be considered that despotism is as perennial as anarchy is transitory. Despotism, as it existed under the Roman emperors, marked out wealth for its victim, and the guilt of being rich never failed to convict the accused of every other crime. This despotism continued for centuries. Despotism, as it has existed in modem Europe, has been ever full of jealousy and intrigue, a tool to the rage of courtiers, and the resentment of women. He that dared utter a word against tyrant, or endeavour to instruct his countrymen in their interests was never secure that the next moment would not conduct him to a dungeon. Here despotism wreaked her vengeance at leisure; and forty years of misery and solitude were sometimes insufficient to satiate her fury. Nor was this all. An usurpation that defied all the rules of justice was obliged to purchase its own safety by assisting tyranny through all its subordinate ranks. Hence the rights of nobility, of feudal vassalage, of primogeniture, of fines and inheritance. When the philosophy of law shall be properly understood, the true key to its spirit and history will probably be found, not, as some men, have fondly imagined, in a desire to secure the happiness of mankind, but in the venal compact by which superior tyrants have purchased the countenance and alliance of the inferior.
There is one point remaining in which anarchy and despotism are strongly contrasted with each other. Anarchy awakens thought, and diffuses energy and enterprise through the community, though it does not effect this in the best manner, as its fruits, forced into ripeness, must not be expected to have the vigorous stamina of true excellence. But, in despotism, mind is trampled into an equality of the most odious sort. Everything that promises greatness is destined to fall under the exterminating hand of suspicion and envy. In despotism, there is no encouragement to excellence. Mind delights to expatiate, in a field where every species of distinction is within its reach. A scheme of policy under which all men are fixed in classes, or levelled with the dust, affords it no encouragement to pursue its career. The inhabitants of countries in which despotism is complete are frequently but a more vicious species of brutes. Oppression stimulates them to mischief and piracy and superior force of mind often displays itself only in deeper treachery, or more daring injustice.
One of the most interesting questions, in relation to anarchy, is that,of the result in which it may be expected to terminate. The possibilities as to this termination are as wide as the various schemes of society which the human imagination can conceive. Anarchy may and has terminated in despotism; and, in that case, the introduction of anarchy will only serve to afflict us with variety of evils. It may lead to a modification of despotism, a milder and more equitable government than that which had gone before. It cannot immediately lead to the best form of society, since it necessarily leaves mankind in a state of ferment, which requires a strong hand to control, and a slow and wary process to tranquillize.
The scene in which anarchy shall terminate principally depends upon the state of mind by which it has been preceded. All mankind were in a state of anarchy, that is, without government, previously to their being in a state of policy. It would not be difficult to find, in the history of almost every country, a period of anarchy. The people of England were in a state of anarchy immediately before the Restoration. The Roman people were in a state of anarchy at the moment of their secession to the Sacred Mountain. Hence it follows that anarchy is neither so good nor so ill a thing in relation to its consequences as it has sometimes been represented.
Little good can be expected from any species of anarchy that should subsist, for instance, among American savages. In order to anarchy being rendered a seed-plot of future justice, reflection and enquiry must have gone before, the regions of philosophy must have been penetrated, and political truth have opened her school to mankind. It is for this reason that the revolutions of the present age (for revolution is a species of anarchy) promise a more auspicious ultimate result than the revolutions of any former period. For the same reason, the more anarchy can be held at bay, the more fortunate will it be for mankind. Falsehood may gain by precipitating the crisis; but a genuine and enlightened philanthropy will wait, with unaltered patience, for the harvest of instruction. The arrival of that harvest may be slow, but it is perhaps infallible. If vigilance and wisdom be successful in their present opposition to anarchy, every benefit may ultimately be expected, untarnished with violence, and unstained with blood.
These observations are calculated to lead us to an accurate estimate of the mischiefs of anarchy, and, of consequence, to show the importance we are bound to attach to the exclusion of it. Government is frequently a source of peculiar evils; but an enlarged view will teach us to endure those evils which experience seems to evince are inseparable from the final benefit of mankind. From the savage state to the highest degree of civilization, the passage is long and arduous; and, if we aspire to the final result, we must submit to that portion of misery and vice which necessarily fills the space between. If we would free ourselves from these inconveniences, unless our attempt be both skilful and cautious, we shall be in danger, by our impatience, of producing worse evils than those we would escape. Now it is the first principle of morality and justice that directs us, where one of two evils is inevitable, to choose the least. Of consequence, the wise and just man, being unable, as yet, to introduce the form of society which his understanding approves, will contribute to the support of so much coercion as is necessary to exclude what is worse, anarchy.
If then constraint as the antagonist of constraint must in certain cases, and under temporary circumstances, be admitted, it is an interesting enquiry to ascertain which of the three ends of punishment, already enumerated, must be selected by the individuals by whom punishment is employed. And here it will be sufficient very briefly to recollect the reasonings that have been stated under each of these heads. It cannot be reformation. Reformation is improvement; and nothing can take place in a man worthy the name of improvement otherwise than by an appeal to the unbiassed judgement of his mind, and the essential feelings of his nature. If I would improve a man's character, who is there that knows not that the only effectual mode is by removing all extrinsic influences and incitements, by inducing him to observe, to reason and enquire, by leading him to the forming a series of sentiments that are truly his own, and not slavishly modelled upon the sentiments of another?
To conceive that compulsion and punishment are the proper means of reformation is the sentiment of a barbarian; civilization and science are calculated to explode so ferocious an idea.It was once universally admitted and approved; it is now necessarily upon the decline.
Punishment must either ultimately succeed in imposing the sentiments it is employed to inculcate upon the mind of the sufferer; or it must forcibly alienate him against them.
The last of these can never be the intention of its employer, or have a tendency to justify its application. If it were so, punishment ought to follow upon deviations from vice, not deviations from virtue. Yet to alienate the mind of the sufferer from the individual that punishes, and from the sentiments he entertains, is perhaps the most common effect of punishment.
Let us suppose however that its effect is of an opposite nature; that it produces obedience, and even a change of opinion. What sort of a being does it leave the man thus reformed? His opinions are not changed upon evidence. His conversion is the result of fear. Servility has operated that within him which liberal enquiry and instruction were not able to do.
Punishment undoubtedly may change a man's behaviour. It may render his external conduct beneficial from injurious, though it is no very promising expedient for that purpose. But it cannot improve his sentiments, or lead him to the form of right proceeding but by the basest and most despicable motives. It leaves him a slave, devoted to an exclusive self-interest, and actuated by fear, the meanest of the selfish passions.
But it may be said, 'however strong may be the reasons I am able to communicate to a man in order to his reformation, he may be restless and impatient of expostulation, and of consequence render it necessary that I should retain him by force, till I can properly instil these reasons into his mind'. It must be remembered that the idea here is not that of precaution, to prevent the mischiefs he might perpetrate, for that belongs to another of the three ends of punishment, that of restraint. But, separately from this idea, the argument is peculiarly weak. If the reasons I have to communicate be of an energetic and impressive nature if they stand forward perspicuous and distinct in my own mind, it will be strange if they do not, at the outset, excite curiosity and attention in him to whom they are addressed. It is my duty to choose a proper reason to communicate them, and not to betray the cause of justice by an ill-timed impatience. This prudence I should infallibly exercise if my object were to obtain something interesting to myself; why should I be less quick-sighted when I purpose the benefit of another? It is a miserable way of preparing a man for conviction to compel him by violence to hear an expostulation which he is eager to avoid. These arguments prove, not that we should lose sight of reformation, if punishment for any other reason appear to be necessary; but that reformation cannot reasonably be made the object of punishment.
Punishment for the sake of example is a theory, that can never be justly maintained. The suffering proposed to be inflicted, considered absolutely, is either right or wrong. If it be right, it should be inflicted for its intrinsic recommendations. If it be wrong, what sort of example does it display? To do a thing for the sake of example is, in other words, to do a thing today in order to prove that I will do a similar thing tomorrow. This must always be a subordinate consideration. No argument has been so grossly abused as this of example. We found it, under the subject of war,(2*) employed to prove the propriety of my doing a thing otherwise wrong, in order to convince the opposite party that I should, when occasion offered, do something else that was right. He will display the best example, who carefully studies the principles of justice, and assiduously practises them. A better effect will be produced in human society by my conscientious adherence to them than by my anxiety to create a specific expectation respecting my future conduct. This argument will be still further enforced if we recollect what has already been said respecting the inexhaustible differences of different cases, and the impossibility of reducing them to general rules.(3*)
The third object of punishment according to the enumeration already made is restraint. If punishment be, in any case, to be admitted, this is the only object it can reasonably propose to itself. The serious objections to which, even in this point of view, it is liable have been stated in another stage of the enquiry:(4*) the amount of the necessity tending to supersede these objections has also been considered. The subject of this chapter is of great importance in proportion to the length of time that may possibly elapse before any considerable part of mankind shall be persuaded to exchange the present complexity of political institution for a mode which promises to supersede the necessity of punishment. It is highly unworthy of the cause of truth, to suppose that, during this interval, I have no active duties to perform, that I am not obliged to co-operate for the present welfare of the community, as well as for its future regeneration. The temporary obligation that arises out of this circumstance exactly corresponds with what was formerly delivered on the subject of duty. Duty is the best possible application of a given power to the promotion of the general good.(5*) But my power depends upon the disposition of the men by whom I am surrounded. If I were enlisted in an army of cowards, it might be my duty to retreat, though, absolutely considered, it should have been the duty of the army to come to blows. Under every possible circumstance, it Is my duty to advance the general good, by the best means which the circumstances under which I am placed will admit.
1. Book V, Chap. XXII.
2. Book V, Chap. XVI.
3. Chap. IV.
4. Chap. III.
5. Book II, Chap. IV.
SCALE OF PUNISHMENT
It is time to proceed to the consideration of certain inferences that may be deduced from the theory of punishment which has now been delivered; nor can anything be of greater importance than these inferences will be found, to the virtue, the happiness and improvement of mankind.
And, first, it evidently follows that punishment is an act of painful necessity, inconsistent with the true character and genius of mind, the practice of which is temporarily imposed upon us by the corruption and ignorance that reign among mankind. Nothing can be more absurd than to look to it as a source of improvement. It contributes to the generation of excellence, just as the keeper of the course contributes to the fleetness of the race. Nothing can be more unjust than to have recourse to it, but upon the most unquestionable emergency. Instead of multiplying occasions of coercion, and applying it as the remedy of every moral evil, the true politician will anxiously confine it within the narrowest limits, and perpetually seek to diminish the occasions of its employment. There is but one reason which can, in any case, be admitted as its apology, and that is where the allowing the offender to be at large shall be notoriously hazardous to public security .
Secondly, the consideration of restraint as the only justifiable ground of punishment will furnish us with a simple and satisfactory criterion by which to measure the justice of the suffering inflicted.
The infliction of a lingering and tormenting death cannot be vindicated upon this hypothesis; for such infliction can only be dictated by sentiments of resentment on the one hand, or by the desire to exhibit a terrible example on the other.
To deprive an offender of his life in any manner will appear to be unjust, as it seems always sufficiently practicable, without this, to prevent him from further offence. Privation of life, though by no means the greatest injury that can be inflicted, must always be considered as a very serious injury; since it puts a perpetual close upon the prospects of the sufferer as to all the enjoyments, the virtues and the excellence of a human being.
In the story of those whom the merciless laws of Europe doom to destruction, we sometimes meet with persons who, subsequently to their offence, have succeeded to a plentiful inheritance, or who for some other reason appear to have had the fairest prospects of tranquillity and happiness opened upon them. Their story, with a little accommodation, may be considered as the story of every offender. If there be any man whom it may be necessary, for the safety of the whole, to put under restraint, this circumstance is a powerful plea to the humanity and justice of those who conduct the affairs of the community, in his behalf. This is the man who most stands in need of their assistance. If they treated him with kindness, instead of supercilious and unfeeling neglect, if they made him understand with how much reluctance they had been induced to employ the force of the society against him, if they represented the true state of the case with calmness, perspicuity and benevolence to his mind, if they employed those precautions which an humane disposition would not fail to suggest, to keep from him the motives of corruption and obstinacy, his reformation would be almost infallible. These are the prospects to which his wants and his misfortunes powerfully entitle him; and it is from these prospects that the hand of the executioner cuts him off for ever.
It is a mistake to suppose that this treatment of criminals tends to multiply crimes. On the contrary, few men would enter upon a course of violence with the certainty of being obliged, by a slow and patient process, to amputate their errors. It is the uncertainty of punishment under the existing forms that multiplies crimes. Remove this uncertainty, and it would be as reasonable to expect that a man would wilfully break his leg, for the sake of being cured by a skilful surgeon. Whatever gentleness the intellectual physician may display, it is not to be believed that men can part with rooted habits of injustice and vice without considerable pain.
The true reasons in consequence of which these forlorn and deserted members of the community are brought to an ignominious death are, first, the peculiar iniquity of the civil institutions of that community, and, secondly, the supineness and apathy of their superiors. In republican and simple forms of government, punishments are rare, and the punishment of death almost unknown. On the other hand, the more there is in any country of inequality and oppression, the more punishments are multiplied. The more the institutions of society contradict the genuine sentiments of the human mind, the more severely is it necessary to avenge their violation. At the same time the rich and titled members of the community, proud of their fancied eminence, behold, with total unconcern, the destruction of the destitute and the wretched, disdaining to recollect that, if there be any intrinsic difference between them, it is the offspring of their different circumstances, and that the man whom they now so much despise might have been found as accomplished and susceptible as they if he had only changed situations. When we behold a company of poor wretches brought out for execution, reflection will present to our affrighted fancy all the hopes and possibilities which are thus brutally extinguished, the genius, the daring invention, the unshrinking firmness, the tender charities and ardent benevolence, which have occasionally, under this system, been sacrificed, at the shrine of torpid luxury and unrelenting avarice.
The species of suffering commonly known by the appellation of corporal punishment is also proscribed by the system above established. Corporal punishment, unless so far as it is intended for example, appears, in one respect, in a very ludicrous point of view . It is an expeditious mode of proceeding which has been invented in order to compress the effect of much reasoning and long confinement, that might otherwise have been necessary, into a very short compass. In another view, it is difficult to express the abhorrence it ought to create. The genuine propensity of man is to venerate mind in his fellow man. With what delight do we contemplate the progress of intellect, its efforts for the discovery of truth, the harvest of virtue that springs up under the genial influence of instruction, the wisdom that is generated through the medium of unrestricted communication? How completely do violence and corporal infliction reverse the scene? From this moment, all the wholesome avenues of mind are closed, and, on every side, we see them guarded with a train of disgraceful passions, hatred, revenge, despotism, cruelty, hypocrisy, conspiracy and cowardice. Man becomes the enemy of man; and stronger are seized with the lust of unbridled domination, and the weaker shrink, with hopeless disgust, from the approach of a fellow. With what feelings must an enlightened observer contemplate the furrow of a lash imprinted upon the body of a man? What heart beats not in unison with the sublime law of antiquity, 'Thou shalt not inflict stripes upon the body of a Roman?' There is but one alternative in this case, on the part of the sufferer. Either his mind must be subdued by the arbitrary dictates of the superior (for to him all is arbitrary that does not stand approved to the judgement of his own understanding); he will be governed by something that is not reason, and ashamed of something that is not disgrace; or else every pang he endures will excite the honest indignation of his heart, and fix the clear disapprobation of his intellect, will produce contempt and alienation against his punisher.
The justice of punishment is built upon this simple principle: Every man is bound to employ such means as shall suggest themselves for preventing evils subversive of general security, it being first ascertained, either by experience or reasoning, that all milder methods are inadequate to the exigency of the case. The conclusion from this principle is that we are bound, under certain urgent circumstances, to deprive the offender of the liberty he has abused. Further than this perhaps no circumstance can authorize us. He whose person is imprisoned (if that be the right kind of seclusion) cannot interrupt the peace of his fellows; and the infliction of further evil, when his power to injure is removed, is the wild and unauthorized dictate of vengeance and rage, the wanton sport of unquestioned superiority .
When indeed the person of the offender has been first seized, there is a further duty incumbent on his punisher, the duty of endeavouring his reform. But this makes no part of the direct consideration. The duty of every man to contribute to the intellectual health of his neighbour is of general application. Beside which it is proper to recollect, what has been already proved. that coercion of no sort is among the legitimate means of reformation. Restrain the offender as long as the safety of the community prescribes it, for this is just. Restrain him not an instant from a simple view to his own improvement, for this is contrary to reason and morality.
Meanwhile, there is one circumstance by means of which restraint and reformation are closely connected. The person of the offender is to be restrained as long as the public safety would be endangered by his liberation. But the public safety will cease to be endangered as soon as his propensities and dispositions have undergone a change. The connection which thus results from the nature of things renders it necessary that, in deciding upon the species of restraint to be imposed, these circumstances be considered jointly, how the personal liberty of the offender may be least entrenched upon, and how his reformation may be best promoted.
The most common method pursued in depriving the offender of the liberty he has abused is to erect a public jail, in which offenders of every description are thrust together, and left to form among themselves what species of society they can. Various circumstances contribute to imbue them with habits of indolence and vice, and to discourage industry; and no effort is made to remove or soften these circumstances. It cannot be necessary to expatiate upon the atrociousness of this system. Jails are, to a proverb, seminaries of vice; and he must be an uncommon proficient in the passion and the practice of injustice, or a man of sublime virtue, who does not come out of them a much worse man than he entered.
An active observer of mankind,(1*) with the purest intentions, and who had paid a singular attention to this subject, was struck with the mischievous tendency of the reigning system, and called the attention of the public to a scheme of solitary imprisonment. But this, though free from the defects of the established mode, is liable to very weighty objections.
It must strike every reflecting mind as uncommonly tyrannical and severe. It cannot therefore be admitted into the system of mild coercion which forms the topic of our enquiry. Man is a social animal. How far he is necessarily so will appear if we consider the sum of advantages resulting from the social, and of which he would be deprived in the solitary state. But, independently of his original structure, he is eminently social by his habits. Will you deprive the man you imprison of paper and books, of tools and amusements? One of the arguments in favour of solitary imprisonment is that it is necessary the offender should be called off from wrong habits of thinking, and obliged to enter into himself. This the advocates of solitary imprisonment probably believe will be most effectually done the fewer be the avocations of the prisoner. But let us suppose that he is indulged in these particulars, and only deprived of society. How many men are there that can derive amusement from books? We are, in this respect, the creatures of habit, and it is scarcely to be expected from ordinary men that they should mould themselves to any species of employment to which in their youth they were strangers. But he that is most fond of study has his moments when study pleases no longer. The soul yearns, with inexplicable longings, for the society of its like. Because the public safety unwillingly commands the confinement of an offender, must he for that reason never light up his countenance with a smile? Who can tell the sufferings of him who is condemned to uninterrupted solitude? Who can tell that this is not, to the majority of mankind, the bitterest torment that human ingenuity can inflict? A mind sufficiently sublime might perhaps conquer this inconvenience: but the powers of such a mind do not enter into the present question.
From the examination of solitary imprisonment, in itself considered, we are naturally led to enquire into its real tendency as to the article of reformation. To be virtuous, it is requisite that we should consider men, and their relation to each other. As a preliminary to this study, is it necessary that we should be shut out from the society of men? Shall we be most effectually formed to justice, benevolence and prudence in our intercourse with each other, in a state of solitude? Will not our selfish and unsocial dispositions be perpetually increased? What temptation has he to think of benevolence or justice, who has no opportunity to exercise it? The true soil in which atrocious crimes are found to germinate is a gloomy and morose disposition. Will his heart become much either softened or expanded, who breathes the atmosphere of a dungeon? Surely it would be better in this respect to imitate the system of the universe, and, if we would teach justice and humanity transplant those we would teach into a simple and reasonable state of society. Solitude, absolutely considered, may instigate us to serve ourselves, but not to serve our neighbours. Solitude, imposed under too few limitations, may be a nursery for madmen and idiots, but not for useful members of society.
Another idea which has suggested itself with regard to the removal of offenders from the community they have injured is that of reducing them to a state of slavery or hard labour. The true refutation of this system is anticipated in what has been already said. To the safety of the community it is unnecessary. As a means to the reformation of the offender, it is inexpressibly ill-conceived. Man is an intellectual being. There is no way to make him virtuous but in calling forth his intellectual powers. There is no way to make him virtuous but by making him independent. He must study the laws of nature, and the necessary consequence of actions, not the arbitrary caprice of his superior. Do you desire that I should work? Do not drive me to it with the whip; for, if, before, I thought it better to be idle, this will but increase my alienation. Persuade my understanding, and render it the subject of my choice. It can only be by the most deplorable perversion of reason that we can be induced to believe any species of slavery, from the slavery of the school-boy to that of the most unfortunate Negro in our West India plantations, favourable to virtue.(2*)
A scheme greatly preferable to any of these, and which has been tried under various forms, is that of transportation or banishment. This scheme under the most judicious modifications, is liable to objection. It would he strange if any scheme of coercion or violence were not so. But it has been made appear still more exceptional than it will he found in its intrinsic nature by the crude and incoherent circumstances with which it has usually been executed.
Banishment in its simple form, that is, a mere prohibition of residence has, at least in certain aggravated cases, a strong appearance of injustice. The citizen whose presence we will not endure in our own country, we have a very questionable right to impose upon any other.
Banishment has sometimes been joined with slavery. Such was the practice of Great Britain previously to the defection of her American colonies. This cannot stand in need of a separate refutation.
A very usual species of banishment is removal to a country yet unsettled. Something may be alleged in favour of this mode of proceeding. The labour by which the undisciplined mind is best weaned from the vicious habits of a corrupt society is the labour, not which is prescribed by the mandate of a superior, but which is imposed by the necessity of subsistence. The first settlement of Rome, by Romulus and his vagabonds, is a happy image of this, whether we consider it as a real history, or as the ingenious fiction of a writer well acquainted with the principles of mind. Men who are freed from the injurious institutions of European government, and obliged to begin the world for themselves, are in the direct road to be virtuous.
Two circumstances have hitherto contributed to render this project abortive. First, that the mother-country pursues this species of colony with her hatred. The chief anxiety is, in reality, to render its residence odious and uncomfortable, with the vain idea of deterring offenders. The chief anxiety ought to be to smooth their difficulties, and contribute to their happiness. We should recollect that the colonists are men, for whom we ought to feel no sentiments but those of kindness and compassion. If we were reasonable, we should regret the cruel exigence that obliges us to treat them in a manner unsuitable to the nature of mind; and having complied with the demand of that exigence, we should next be anxious to confer upon them every benefit in our power. But we are unreasonable. We harbour a thousand savage feelings of resentment and vengeance. We thrust them out to the remotest corner of the world. We subject them to perish by multitudes with hardship and hunger. Perhaps, if our treatment of such unfortunate men were sufficiently humane, banishment to the Hebrides would prove as effectual as banishment to the Antipodes.
Secondly, it is absolutely necessary, upon the principles here explained, that these colonists, after having been sufficiently provided in the outset, should be left to themselves. We do worse than nothing if we pursue them into their obscure retreat with the inauspicious influence of our European institutions. Why trouble ourselves with sending magistrates and officers to govern and direct them? Do we suppose that, if left to themselves, they would universally destroy each other? On the contrary, new situations make new minds. The worst criminals, when turned adrift in a body, and reduced to feel the churlish fang of necessity, conduct themselves upon reasonable principles, and have been found to proceed with a sagacity and public spirit that might put the proudest monarchy to the blush.
Meanwhile let us not forget the inherent vices of punishment, which present themselves from whatever point the subject is viewed. Colonization may be thought the most eligible of those expedients which have been stated, but it is attended with considerable difficulties. The community judges of a certain individual that his residence cannot be tolerated among them consistently with the general safety. In denying him his choice among other communities do they not exceed their commission? What treatment shall be awarded him if he return from the banishment to which he was sentenced? -- These difficulties (and many others might be subjoined to these) are calculated to bring back the mind to the absolute injustice of punishment, and to render us inexpressibly anxious for the period at which it shall be abolished.
To conclude. The observations of this chapter are relative to a theory which affirmed that it might be the duty of individuals, but never of communities, to exert a certain species of political coercion; and which founded this duty upon a consideration of the benefits of public security. Under these circumstances then, every individual is bound to judge for himself, and to yield his countenance to no other coercion than that which is indispensably necessary. He will, no doubt, endeavour to meliorate those institutions, with which he cannot prevail upon his countrymen to part. He will decline all concern in the execution of such, as abuse the plea of public security to atrocious purposes. Laws may easily be found in almost every code which, on account of the iniquity of their provisions, are suffered to fall into disuse by general consent. Every lover of justice will, in this way, contribute to the repeal of laws that wantonly usurp upon the independence of mankind, whether by the multiplicity of their restrictions, or the severity of their sanctions.
1. Mr Howard.
2. The institution of personal slavery has, within a few years, made a considerable progress in the island of Great Britain. The first step was that of sending criminals, whose guilt was of an inferior description, to raise ballast from the bed of the Thames. The second step, more serious in its nature, appears to have resulted from the well intended, but misguided, philanthropy of Mr Howard. This consisted in the erecting jails of solitary confinement in various parts of the country. The prisoners in these jails spend a large proportion of their time shut up in silent and dreary cells, like so many madmen. The rest of their time is employed in what is called hard labour, under the inspection of certain ignorant and insolent taskmasters. It is asserted that, in one of these jails (Clerkenwell New Prison), its unfortunate tenants are engaged for five hours in each day in trundling a wheelbarrow round in a circle. The cruelty of this imposition is inexpressibly heightened by its impudent uselessness. From this instance we may perceive that the inventiveness of tyranny did not perish with the race of Dionysii. Cases of this sort it is our duty, as citizens, to notice, that the chance of their existing without the knowledge of those to whose province their superintendence belongs may be removed.
Having sought to ascertain the decision in which questions of offence against the general safety ought to terminate, it only remains under this head of enquiry to consider the principles according to which the trial should be conducted. These principles may for the most part be referred to two points, the evidence that is to be required, and the method to be pursued by us in classing offences.
The difficulties to which the subject of evidence is liable have been stated in the earlier divisions of this work.(1*) It may be worth while, in this place, to recollect the difficulties which attend upon one particular class of evidence, it being scarcely possible that the imagination of every reader should not suffice him to apply this text, and to perceive how easily the same kind of enumeration might be extended to any other class.
It has been asked, 'Why intentions are not subjected to the animadversion of criminal justice, in the same manner as direct acts of offence?'
The arguments in favour of their being thus subjected are obvious. 'The proper object of political superintendence is not the past, but the future. Society cannot justly employ punishment against any individual, however atrocious may have been his misdemeanours, from any other than a prospective consideration, that is, a consideration of the danger with which his habits may be pregnant to the general safety. Past conduct cannot properly fall under the animadversion of government, except so far as it is an indication of the future. But past conduct appears, at first sight, to afford a slighter presumption as to what the delinquent will do hereafter than declared intention. The man who professes his determination to commit murder seems to be scarcely a less dangerous member of society than he who, having already committed murder, has no apparent intention to repeat his offence.' Yet all governments have agreed either to pass over the menace in silence, or to subject the offender to a much less degree of punishment than they employ against him by whom the crime has been perpetrated. It may be right perhaps to yield them some attention when they thus agree in forbearance, though little is probably due to their agreement in inhumanity.
This distinction, so far as it is founded in reason, has relation principally to the uncertainty of evidence. Before the intention of any man can be ascertained, in a court of justice, from the consideration of the words he has employed, a variety of circumstances must be taken into the account. The witness heard the words which were employed : does he repeat them accurately, or has not his want of memory caused him to substitute, in the room of some of them, words of his own? Before it is possible to decide, upon the confident expectation I may entertain, that these words will be followed with correspondent actions, it is necessary I should know the exact tone with which they were delivered, and gesture with which they were accompanied. It is necessary I should be acquainted with the context, and the occasion that produced them. Their construction will depend upon the quantity of momentary heat or rooted malice with which they were delivered; and words which appear at first sight of tremendous import will sometimes be found, upon accurate investigation, to have had a meaning purely ironical in the mind of the speaker. These considerations, together with the odious nature of punishment in general, and the extreme mischief that may attend our restraining the faculty of speech, in addition to the restraint we conceive ourselves obliged to put on men's actions, will probably be found to afford a sufficient reason why words ought seldom or never to be made a topic of political animadversion.
1. Particularly chapter IV.
A further article of great importance in the trial of offences is that of the method to be pursued by us in classing them, and the consequent apportioning the degree of animadversion to the cases that may arise. This article brings us to the direct consideration of law, which is, without doubt, one of the most important topics upon which human intellect can be employed. It is law that has hitherto been regarded, in countries calling themselves civilized, as the standard by which to measure all offences and irregularities that fall under public animadversion. Let us fairly investigate the merits of this choice.
The comparison which has presented itself, to those by whom the topic has been investigated, has hitherto been between law on one side, and the arbitrary will of a despot on the other. But if we would estimate truly the merits of law, we should first consider it as it is in itself, and then, if necessary, search for the most eligible principle that may be substituted in its place.
It has been recommended as 'affording information to the different members of the community, respecting the principles which will be adopted in deciding upon their actions'. It has been represented as the highest degree of iniquity 'to try men by an ex post facto law, or indeed in any other manner than by the letter of a law, formally made, and sufficiently promulgated'.
How far it will be safe altogether to annihilate this principle, we shall presently have occasion to enquire. It is obvious, at first sight, to remark that it is of most importance in a country where the system of jurisprudence is most capricious and absurd. If it be deemed criminal in any society to wear clothes of a particular texture, or buttons of a particular composition, it is unavoidable to exclaim that it is high time the jurisprudence of that society should inform its members what are the fantastic rules by which they mean to proceed. But, if a society be contented with the rules of justice, and do not assume to itself the right of distorting or adding to those rules, there law is evidently a less necessary institution. The rules of justice would be more clearly and effectually taught by an actual intercourse with human society, unrestrained by the fetters of prepossession, than they can be by catechisms and codes.(1*)
One result of the institution of law is that the institution, once begun, can never be brought to a close. Edict is heaped upon edict, and volume upon volume. This will be most the case where the government is most popular, and its proceedings have most in them of the nature of deliberation. Surely this is no slight indication that the principle is wrong, and that, of consequence, the further we proceed in the path it marks out to us, the more we shall be bewildered. No talk can be less hopeful than that of effecting a coalition between a right principle and a wrong. He that seriously and sincerely attempts it will perhaps expose himself to more palpable ridicule than he who, instead of professing two opposite systems, should adhere to the worst.
There is no maxim more clear than this, 'Every case is a rule to itself.' No action of any man was ever the same as any other action had ever the same degree of utility or injury. It should seem to be the business of justice to distinguish the qualities of men, and not, which has hitherto been the practice, to confound them. But what has been the result of an attempt to do this in relation to law? As new cases occur, the law is perpetually found deficient. How should it be otherwise? Lawgivers have not the faculty of unlimited prescience, and cannot define that which is boundless. The alternative that remains is either to wrest the law to include a case which was never in the contemplation of its authors, or to make a new law to provide for this particular case. Much has been done in the first of these modes. The quibbles of lawyers, and the arts by which they refine and distort the sense of the law, are proverbial. But, though much is done, everything cannot be thus done. The abuse will sometimes be too palpable. Not to say that the very education that enables the lawyer, when he is employed for the prosecutor, to find out offences the lawgiver never meant, enables him, when he is employed for the defendant, to discover subterfuges that reduce the law to nullity. It is therefore perpetually necessary to make new laws. These laws, in order to escape evasion, are frequently tedious, minute and circumlocutory. The volume in which justice records her prescriptions is for ever increasing, and the world would not contain the books that might be written.
The consequence of the infinitude of law is its uncertainty. This strikes at the principle upon which law is founded. Laws were made to put an end to ambiguity , and that each man might know what he had to expect. How well have they answered this purpose? Let us instance in the article of property. Two men go to law for a certain estate. They would not go to law if they had not both of them an opinion of the success. But we may suppose them partial in their own case. They would not continue to go to law if they were not both promised success by their lawyers. Law was made that a plain man might know what he had to expect; and yet the most skilful practitioners differ about the event of my suit. It will sometimes happen that the most celebrated pleader in the kingdom, or the first counsel in the service of the crown, shall assure me of infallible success, five minutes before another law-officer, styled the keeper of the king's conscience, by some unexpected juggle decides it against me. Would the issue have been equally uncertain if I had had nothing to trust to but the plain unperverted sense of a jury of my neighbours, founded in the ideas they entertained of general justice? Lawyers have absurdly maintained that the expensiveness of law is necessary to prevent the unbounded multiplication of suits; but the true source of this multiplication is uncertainty. Men do not quarrel about that which is evident, but that which is obscure.
He that would study the laws of a country accustomed to legal security must begin with the volumes of the statutes. He must add a strict enquiry into the common or unwritten law; and he ought to digress into the civil, the ecclesiastical and canon law. To understand the intention of the authors of a law, he must be acquainted with their characters and views, and with the various circumstances to which it owed its rise, and by which it was modified while under deliberation. To understand the weight and interpretation that will be allowed to it in a court of justice, he must have studied the whole collection of records, decisions and precedents. Law was originally devised that ordinary men might know what they had to expect; and there is not, at this day, a lawyer existing in Great Britain vain-glorious enough to pretend that he has mastered the code. Nor must it be forgotten that time and industry, even were they infinite, would not suffice. It is a labyrinth without end ; it is a mass of contradictions that cannot be disentangled. Study will enable the lawyer to find in it plausible, perhaps unanswerable, arguments for any side of almost any question; but it would argue the utmost folly to suppose that the study of law can lead to knowledge and certainty.
A further consideration that will demonstrate the absurdity of law in its most general acceptation is that it is of the nature of prophecy . Its task is to describe what will be the actions of mankind, and to dictate decisions respecting them. Its merits, in this respect, have already been decided under the head of promises.(2*) The language of such a procedure is 'We are so wise that we can draw no additional knowledge from circumstances as they occur; and we pledge ourselves that, if it be otherwise, the additional knowledge we acquire shall produce no effect upon our conduct.' It is proper to observe that this subject of law may be considered, in some respects, as more properly belonging to the topic of the preceding book. Law tends, no less than creeds, catechisms and tests, to fix the human mind in a stagnant condition, and to substitute a principle of permanence in the room of that unceasing progress which is the only salubrious element of mind. All the arguments therefore which were employed upon that occasion may be applied to the subject now under consideration.
The fable of Procrustes presents us with a faint shadow of the perpetual effort of law. In defiance of the great principle of natural philosophy, that there are not so much as two atoms of matter of the same form through the whole universe, it endeavours to reduce the actions of men, which are composed of a thousand evanescent elements, to one standard. We have already seen the tendency of this endeavour in the article of murder.(3*) It was in the contemplation of this system of jurisprudence that the strange maxim was invented that 'strict justice would often prove the highest injustice.'(4*) There is no more real justice in endeavouring to reduce the actions of men into classes than there was in the scheme to which we have just alluded, of reducing all men to the same stature. If, on the contrary, justice be a result flowing from the contemplation of all the circumstances of each individual case, if only the criterion of justice be general utility, the inevitable consequence is that the more we have of justice, the more we shall have of truth, virtue and happiness.
From all these considerations we can scarcely hesitate to conclude universally that law is an institution of the most pernicious tendency.
The subject will receive some additional elucidation if we consider the perniciousness of law in its immediate relation to those who practise it. If there ought to be no such thing as law, the profession of lawyer is no doubt entitled to our disapprobation. A lawyer can scarcely fail to be a dishonest man. This is less a subject for censure than for regret. Men are, in an eminent degree, the creatures of the circumstances under which they are placed. He that is habitually goaded by the incentives of vice will not fail to be vicious. He that is perpetually conversant in quibbles, false colours and sophistry cannot equally cultivate the generous emotions of the soul, and the nice discernment of rectitude. If a single individual can be found who is but superficially tainted with the contagion, how many men on the other hand in whom there appeared a promise of the sublimest virtues have by this trade been rendered indifferent to consistency, or accessible to a bribe? Be it observed that these remarks apply principally to men eminent or successful in their profession. He that enters into an employment carelessly, and by way of amusement, is much less under its influence (though even he will not escape) than he that enters into it with ardour and devotion.
Let us however suppose, a circumstance which is perhaps altogether impossible, that a man shall be a perfectly honest lawyer. He is determined to plead no cause that he does not believe to be just, and to employ no argument that he does not apprehend to be solid. He designs. as far as his sphere extends, to strip law of its ambiguities, and to speak the manly language of reason. This man is, no doubt, highly respectable, so far as relates to himself; but it may be questioned whether he be not a more pernicious member of society than the dishonest lawyer. The hopes of mankind in relation to their future progress depend upon their observing the genuine effects of erroneous institutions. But this man is employed in softening and masking these effects. His conduct has a direct tendency to postpone the reign of sound policy , and to render mankind tranquil in the midst of imperfection and ignorance.
What is here stated however in favour of the dishonest lawyer, like that stated in favour of an imbecile monarch,(5*) should be considered as advanced in the way of conjecture only. As there is some pain which is requisite as the means of an overbalance of pleasure, so there may, in a few extraordinary instances, be some vice (understanding by vice, evil intention or rooted depravity) which is productive of the effects of virtue. In questions of this kind however, it becomes us to be more than usually scrupulous and guarded. It is of the most pernicious consequence for us to confound the distinctions of virtue and vice. It can scarcely be considered as the part of a philanthropist to rejoice in the depravity of others. It is safer for us, in almost every imaginable instance, to regard 'every departure from enormous vice, as so much gained to the cause of general happiness'.(6*)
The only principle which can be substituted in the room of law is that of reason exercising an uncontrolled jurisdiction upon the circumstances of the case. To this principle no objection can arise on the score of wisdom. It is not to be supposed that there are not men now existing whose intellectual accomplishments rise to the level of law. Law we sometimes call the wisdom of our ancestors. But this is a strange imposition. It was as frequently the dictate of their passion, of timidity, jealousy, a monopolizing spirit, and a lust of power that knew no bounds. Are we not obliged perpetually to revise and remodel this misnamed wisdom of our ancestors? to correct it by a detection of their ignorance, and a censure of their intolerance? But if men can be found among us whose wisdom is equal to the wisdom of law, it will scarcely be maintained that the truths they have to communicate will be the worse for having no authority but that which they derive from the reasons that support them .
It may however be alleged that 'if there be little difficulty in securing a current portion of wisdom, there may nevertheless be something to be feared from the passions of men. Law may be supposed to have been constructed in the tranquil serenity of the soul, a suitable monitor, to check the inflamed mind, with which the recent memory of ills might induce us to proceed to the infliction of punishment.' This is the most considerable argument that can be adduced in favour of the prevailing system, and therefore deserves a mature examination.
The true answer to this objection is that nothing can be improved but in conformity to its nature. If we consult for the welfare of man, we must bear in mind the structure of man. It must be admitted that we are imperfect, ignorant, the slaves of appearance. These defects can be removed by no indirect method, but only by the introduction of knowledge. A specimen of the indirect method we have in the doctrine of spiritual infallibility. It was observed that men were liable to error, to dispute for ever without coming to a decision, and to mistake in their most important interests. What was wanting was supposed to be a criterion and a judge of controversies. What was attempted was to indue truth with a visible form, and then repair to the oracle we had erected.
The case respecting law is parallel to this. Men were aware of the deceitfulness of appearances, and they sought a talisman to guard them from imposition. Suppose I were to determine, at the commencement of every day, upon a certain code of principles to which I would conform the conduct of the day; and, at the commencement of every year, the conduct of the year. Suppose I were to determine that no circumstances should be allowed, by the light they afforded, to modify my conduct, lest I should become the dupe of appearances, and the slave of passion. This is a just and accurate image of every system of permanence. Such systems are formed upon the idea of stopping the perpetual motion of the machine, lest it should sometimes fall into disorder .
This consideration must sufficiently persuade an impartial mind that, whatever inconveniences may arise from the passions of men, the introduction of fixed laws cannot be the genuine remedy . Let us consider what would be the operation and progressive state of these passions, provided men were trusted to the guidance of their own discretion. Such is the discipline that a reasonable state of society employs with respect to man in his individual capacity:(7*) why should it not be equally valid with respect to men acting in a collective capacity? Inexperience and zeal would prompt me to restrain my neighbour whenever he is acting wrong, and, by penalties and inconveniences designedly interposed, to cure him of his errors. But reason evinces the folly of this proceeding, and teaches me that, if he be not accustomed to depend upon the energies of intellect, he will never rise to the dignity of a rational being. As long as a man is held in the trammels of obedience, and habituated to look to some foreign guidance for the direction of his conduct, his understanding and the vigour of his mind will sleep. Do I desire to raise him to the energy of which he is capable? I must teach him to feel himself, to bow to no authority, to examine the principles he entertains, and render to his mind the reason of his conduct.
The habits which are thus salutary to the individual will be equally salutary in the transactions of communities. Men are weak at present, because they have always been told they are weak, and must not be trusted with themselves. Take them out of their shackles, bid them enquire, reason and judge, and you will soon find them very different beings. Tell them that they have passions, are occasionally hasty, intemperate and injurious, but they must be trusted with themselves. Tell them that the mountains of parchment in which they have been hitherto entrenched are fit only to impose upon ages of superstition and ignorance; that henceforth we will have no dependence but upon their spontaneous justice; that, if their passions be gigantic, they must rise with gigantic energy to subdue them; that, if their decrees be iniquitous, the iniquity shall be all their own. The effect of this disposition of things will soon be visible; mind will rise to the level of its situation; juries and umpires will be penetrated with the magnitude of the trust reposed in them.
It may be no uninstructive spectacle to survey the progressive establishment of justice in the state of things which is here recommended. At first, it may be, a few decisions will be made uncommonly absurd or atrocious. But the authors of these decisions will be confounded, with the unpopularity and disgrace in which they have involved themselves. In reality , whatever were the original source of law, it soon became cherished as a cloak for oppression. Its obscurity was of use to mislead the inquisitive eye of the sufferer. Its antiquity served to divert a considerable part of the odium from the perpetrator of the injustice to the author of the law; and, still more, to disarm that odium by the influence of superstitious awe. It was well known that unvarnished, barefaced oppression could not fail to be the victim of its own operations.
To this statement it may indeed be objected 'that bodies of men have often been found callous to censure, and that the disgrace, being amicably divided, is intolerable to none'. In this observation there is considerable force, but it is inapplicable to the present argument. To this species of abuse one of two thing is indispensably necessary, either numbers of secrecy . To this abuse therefore it will be a sufficient remedy that each jurisdiction be considerably limited, and all transactions conducted in an open and explicit manner. -- To proceed.
The juridical decisions that were made immediately after the abolition of law would differ little from those during its empire, They would be the decisions of prejudice and habit. But habit, having lost the centre about which it revolved, would diminish in the regularity of its operations. Those to whom the arbitration of any question was entrusted would frequently recollect that the whole case was committed to their deliberation; and they could not fail occasionally to examine themselves respecting the reason of those principles which had hitherto passed uncontroverted. Their understandings would grow enlarged, in proportion as they felt the importance of their trust, and the unbounded freedom of their investigation. Here then would commence an auspicious order of things, of which no understanding of man at present in existence can foretell the result, the dethronement of implicit faith, and the inauguration of reason and justice.
Some of the conclusions of which this state of things would be the harbinger have been already seen, in the judgement that would be made of offences against the community.(*) Offences arguing a boundless variety in the depravity from which they sprung would no longer be confounded under some general name. Juries would grow as perspicacious in distinguishing, as they are now indiscriminate in confounding, the merit of actions and characters.
The effects of the abolition of law, as it respects the article of property, would not be less auspicious. Nothing can be more worthy of regret than the manner in which property is at present administered, so far as relates to courts of justice. The doubtfulness of titles, the different measures of legislation as they relate to different classes of property, the tediousness of suits, and the removal of causes by appeal from court to court, are a perpetual round of artifice and chicane to one part of the community, and of anguish and misery to another. Who can describe the baffled hopes, the fruitless years of expectation, which thus consume away the strength and the lives of numerous individuals? In vain is the intention of a testator, while the disputes between the legal and the testamentary heir, or a mere quibble upon the phraseology of the bequest, shall supply food for endless controversy. In vain shall be all the assurances I can heap together for the establishment of my right, since the obscurity of records, and the complexity of law , will, almost in all cases, enable an ingenious man, who is at the same time a rich one, to dispute my tenure. The imbecility of law is strikingly illustrated by the vulgar maxim of the importance of possession. Possession could not be thus advantageous were it not for the opportunity that law affords for procrastination and evasion. Property could not be thus disputable were the persons who are called upon to decide concerning it left to the direction of their own understanding. The contention of opposing claims arises more from the jargon in which these claims are recorded than from the complexity of the subject to which they relate. The intention of a testator is much more easily settled than the quibbles to which the expression of that intention may be subjected. Those who were appointed for the decision of suits would not indeed be such gainers, under the system here delineated, as at present; but every other description of persons that were interested in questions of property would, no doubt, find their advantage.
An observation which cannot have escaped the reader in the perusal of this chapter is that law is merely relative to the exercise of political force, and must perish when the necessity for that force ceases, if the influence of truth do not still sooner extirpate it from the practice of mankind.
1. Book VI, Chap. VIII.
2. Book III, Chap. III.
3. Chap. IV.
4. Summum jus summa injuria.
5. Book V, Chap. VII.
6. Book IV, Chap. XI.
7. Book V, Chap. XX.
8. Chap. IV.
There is one other topic which belongs to the subject of the present book, but which may be dismissed in a very few words, because, though it has unhappily been, in almost all cases, neglected in practice, it is a point that seems to admit of uncommonly simple and irresistible evidence: I mean the topic of pardons.
The very word, to a reflecting mind, is fraught with absurdity. 'What is the rule that ought, in all cases, to direct my conduct?' Surely justice; understanding by justice the greatest utility of the whole mass of beings that may be influenced by my conduct. 'What then is clemency?' It can be nothing but the pitiable egotism of him who imagines he can do something better than justice. 'Is it right that I should suffer constraint for a certain offence?' The reasonableness of my suffering must be founded in its consonance with the general welfare. He therefore that pardons me iniquitously prefers the supposed interest of an individual, and utterly neglects what he owes to the whole. He bestows that which I ought not to receive, and which he has no right to give. 'Is it right, on the contrary, that I should not undergo the suffering in question? Will he, by rescuing me from suffering, confer a benefit on me, and inflict no injury on others?' He will then be a notorious delinquent, if be allows me to suffer. There is indeed a considerable defect in this last ,supposition. If, while he benefits me, lie inflicts no injury upon others, he is infallibly performing a public service. If I suffered in the arbitrary manner which the supposition includes, the public would sustain an unquestionable injury in the injustice that was perpetrated. And yet the man who prevents this odious injustice has been accustomed to arrogate to himself the attribute of clement, and the apparently sublime, but, in reality, tyrannical, name of forgiveness. For, if he do more than has been here described, instead of glory, he ought to take shame to himself, as an enemy to human kind. If every action, and especially every action in which the happiness of a rational being is concerned, be susceptible of a certain rule, then caprice must be in all cases excluded: there can be no action which, if I neglect, I shall have discharged my duty, and, if I perform, I shall be entitled to applause.
The pernicious effect of the system of pardons is peculiarly glaring. It was first invented as the miserable supplement to a sanguinary code, the atrociousness of which was so conspicuous that its ministers either dreaded the resistance of the people, if it were indiscriminately executed, or themselves shrunk with unconquerable repugnance from the devastation it commanded. The system of pardons obviously associates with the system of law; for, though we may call every case, for instance, in which one man occasions the death of another, by the name of murder, yet the injustice would be too great to apply to all cases the same treatment. Define murder as accurately as we please, the same consequence, the same disparity of cases, will obtrude itself. It is necessary therefore to have a court of reason to which the decisions of a court of law shall be brought for revisal.
But how is this court, inexpressibly more important than the other, to be constituted? Here lies the essence of the matter; the rest is form. A jury is empanelled to tell you the genetical name of the action; a judge presides, to read out of the volume of the law the prescription annexed to that name; last of all comes the court of enquiry, which is to decide whether the prescription of the dispensatory is suitable to the circumstances of this particular case. This authority we are accustomed to invest, in the first instance with the judge, and in the last resort with the king in council. Now, putting aside the Propriety or impropriety of this particular selection, there is one grievous abuse which ought to strike the most superficial observer. These persons with whom the principal trust is reposed consider their functions in this respect as a matter purely incidental, exercise them with supineness, and, in many instances, with the most scanty materials to guide their judgement. This grows in a considerable degree out of the very name of pardon, by which we are accustomed to understand a work of supererogatory benevolence.
From the manner in which pardons are dispensed inevitably flows the uncertainty of punishment. It is too evident that punishment is inflicted by no certain rules, and therefore creates no uniformity of expectation. Uniformity of treatment, and constancy of expectations form the sole basis of a genuine morality. In a just form of society, this would never go beyond the sober expression of those sentiments of approbation or disapprobation with which different modes of conduct inevitably impress us. But, if we at present exceed this line, it is surely an execrable refinement of injustice that should exhibit the perpetual menace of suffering, unaccompanied with any certain rule foretelling its application. Not more than one third of the offenders whom the law condemns to death in this metropolis are made to suffer the punishment that is awarded. Is it possible that each offender should not flatter himself that he shall be among the number that escapes? Such a system, to speak it truly, is a lottery of death, in which each man draws his ticket for reprieve or execution, as undefinable accidents shall decide.
It may be asked whether 'the abolition of law would not produce equal uncertainty?' By no means. The principles of king and council, in such cases, are very little understood, either by themselves or others. The principles of a jury of his neighbours, commissioned to pronounce upon the whole of the case, the criminal easily guesses. He has only to appeal to his own sentiments and experience. Reason is a thousand times more explicit and intelligible than law; and when we were accustomed to consult her, the certainty of the decisions would be such as men, practised in our present courts, are totally unable to conceive.
Another important consequence grows out of the system of pardons. A system of pardons is system of unmitigated slavery. I am taught to expect a certain desirable event, from what? From the clemency, the uncontrolled, unmerited kindness of a fellow mortal. Can any lesson be more degrading? The pusillanimous servility of the man, who devotes himself with everlasting obsequiousness to another, because that other, having begun to be unjust, relents in his career; the ardour with which he confesses the equity of his sentence and the enormity of his deserts will constitute a tale that future ages will find it difficult to understand.
What are the sentiments in this respect that are alone worthy of a rational being? Give me that, and that only, which without injustice you cannot refuse. More than justice it would be disgraceful for me to ask, and for you to bestow. I stand upon the foundation of right. This is a title which brute force may refuse to acknowledge, but which all the force in the world cannot annihilate. By resisting this plea, you may prove yourself unjust; but, in yielding to it, you grant me but my due. If, all things considered, I be the fit subject of a benefit, the benefit is merited: merit, in any other sense, is contradictory and absurd. If you bestow upon me unmerited advantage, you are a recreant from the general good. I may be base enough thank you; but, if I were virtuous, I should condemn you.
These sentiments alone are consistent with true independence of mind. He that is accustomed to regard virtue as an affair of favour and grace cannot be eminently virtuous. If he occasionally perform an action of apparent kindness, he will applaud the generosity of his sentiments; and, if he abstain, he will acquit himself with the question, 'May I not do what I will with my own?' In the same manner, when he is treated benevolently by another, he will, in the first place, be unwilling to examine strictly into the reasonableness of this treatment, because benevolence, as he imagines, is not subject to any inflexibility of rule; and, in the second place, he will not regard his benefactor with that erect and unembarrassed mien, that manly sense of equality, which is the only unequivocal basis of virtue and happiness.