BOOK VII

OF CRIMES AND PUNISHMENTS




CHAPTER I




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.




NOTES




1. Book V, Chap. XX.




2. Book V, Chap. XII; Book VI, throughout.




3. Book IV, Chap. VIII.




CHAPTER II




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.




NOTES




1. Book II, Chap. VI.




2. Book II, Chap. VI.




CHAPTER III




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




NOTES:




1. Book V, Chap. II.




2. Beccaria, Dei Delitti e delle Pene.




CHAPTER IV




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.




NOTES:




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.




CHAPTER V




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.




NOTES:




1. Book V, Chap. XXII.




2. Book V, Chap. XVI.




3. Chap. IV.




4. Chap. III.




5. Book II, Chap. IV.




Chapter VI




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. 




NOTES:




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. 




Chapter VII




OF EVIDENCE




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. 




NOTES:




1. Particularly chapter IV.




Chapter VIII




OF LAW




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.




NOTES:




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.




CHAPTER IX




OF PARDONS




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.