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book vii.: of legislative and executive power - William Godwin, An Enquiry Concerning Political Justice, Vol. II. 
An Enquiry Concerning Political Justice, and its Influence on General Virtue and Happiness, vol. 2 (London: G.G.J. and J. Robinson, 1793).
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of legislative and executive power
limitations of the doctrine of punishment which result from the principles of morality.
definition of punishment.—nature of crime.—retributive justice not independent and absolute—not to be vindicated from the system of nature.—desert a chimerical property.—conclusion.
The subject of punishment is perhaps the most fundamentalbook vii. chap. i in the science of politics. Men associated for the sake of mutual protection and benefit. It has already appeared, that book vii. chap. i the internal affairs of such associations are of infinitely greater importance than their external* . It has appeared that the action of society in conferring rewards and superintending opinion is of pernicious effect† . Hence it follows that government, or the action of the 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.
Definition of 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 an innocent 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 the exertion of force for some moral purpose, comes within the import of the word punishment. Punishment is generally used to signify the voluntary infliction of evil upon abook vii. chap. i 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 therefore, in the strict import ofNature of crime. the word, can only be a deduction from the hypothesis of freewill, and must be false, if human actions be necessary. Mind, as was sufficiently apparent when we treated of that subject* , 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 book vii. chap. i 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 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 at all 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 here specified, the two cases are exactly parallel. The assassin cannot help the murder he commits any more than the dagger.
Retributive justice not independent and absolute: 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 a proposition that few reasonable and reflecting minds will be found inclined to reject it. Why do I inflict suffering on another? If neither for his own benefit nor the benefit of others, can that 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 the mind easily reconciles itselfbook vii. chap. i 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 the highest acts of benevolence, if his situation were changed for the social, the second to malignity, tyranny and injustice, do we not feel that the first is entitled to felicity in preference to the second?” If there be any difficulty 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 is 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 book vii. chap. i render social. It is difficult for us to separate even in 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 the question of a solitary being will always be extravagant and unintelligible, but will never convince.
not to be vindicated from the system of nature. It has sometimes been alledged that the very course of nature has annexed suffering to vice, and has thus led us to the idea of punishment. Arguments of this sort must 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 mal-treat 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 of the whole, to entitle us to form our moral principles upon an imitation of what we conceive to be the course of nature.
It is an extreme error to suppose that the course of nature is something arbitrarily adjusted by a designing mind. Let us once conceive a system of percipient beings to exist, and all that we know of the history of man follows from that conception as so many inevitable consequences. Mind beginning to exist must have begun from ignorance, must have received idea after idea, must have been liable to erroneous conclusions from imperfectbook vii. chap. i conceptions. We say that the system of the universe has annexed happiness to virtue and pain to vice. We should speak more accurately if we said, that virtue would not be virtue nor vice be vice, if this connection could cease. The office of the principle, whether mind or whatever else, to which the universe owes its existence, is less that of fabricating than conducting; is not the creation of truth, and the connecting ideas and propositions which had no original relation to each other, but the rendering truth, the nature of which is unalterable, an active and vivifying principle. It cannot therefore be good reasoning to say, the system of nature annexes unhappiness to vice, or in other words vice brings its own punishment along with it, therefore it would be unjust in us not by a positive interference to render that punishment double.
Thus it appears, whether we enter philosophically into theDesert a chimerical property. principle of human actions, or merely analyse the ideas of rectitude and justice which have the universal consent of mankind, that, accurately speaking, there is no such thing as desert. It cannot be just that we should inflict suffering on any man, except so far as it tends to good. Hence it follows that the strict acceptation of the word punishment 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 book vii. chap. i 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 wildest conceptions of untutored barbarism. Every man upon whom discipline is administered, is to be considered as to the rationale of this discipline as innocent. Xerxes was not more unreasonable when he lashed the waves of the sea, than that man would be who inflicted suffering on his fellow, from a view to the past, and not from a view to the future.
Conclusion. It is of the utmost importance that we should bear these ideas constantly in mind during our whole 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 all emotions of anger and resentment; if they had considered the man who torments another for what he has done, as upon par with the child who beats the table; if they had figured to their imagination, and then properly estimated, the man, who should shut up in prison some atrocious criminal, and afterwards torture him at stated periods, merely in consideration of the abstract congruity of crime and punishment, without any possible benefit to others or to himself; if they had regardedbook vii. chap. i infliction as that which was to be regulated solely by a dispassionate calculation of the future, without suffering the past, in itself considered, for a moment to enter into the account.
general disadvantages of coercion.
conscience in matters of religion considered—in the conduct of life.—best practicable criterion of duty—not the decision of other men—but of our own understanding.—tendency of coercion.—its various classes considered..
book vii. chap. iiHaving thus precluded all ideas of punishment or retribution strictly so called, it belongs to us in the farther discussion of this interesting subject, to think merely of that coercion, which has usually been employed against persons convicted of past injurious action, for the purpose of preventing future mischief. And here we will first consider what is the quantity of evil which accrues from all such coercion, and secondly examine the cogency of the various reasons by which this coercion is recommended. It will not be possible wholly to avoid the repetition of some of the reasons which occurred in the preliminary discussion of the exercise of private judgment* . But those reasonings will now be extended, and derive additional advantage from a fuller arrangement.
It is commonly said that no man ought to be compelled inbook vii. chap. ii conscience in matters of religion considered: 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 mind. He that discharges what his own 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 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 corruption, 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 falshood 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 abject pusillanimity to which he has yielded. Instead of filling him with sacred confidence, it overwhelms with confusion and remorse.
book vii. chap. ii in the conduct of life. 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 inference is false. It is only by an unaccountable perversion of reason, that men have been induced to affirm that religion is the sacred province of conscience, and that moral duty may be left undefined to the decision of the magistrate. What, is it of no consequence whether I be the benefactor of my species, or their bitterest enemy? whether I be an informer, or a robber, or a murderer? whether I be employed as a soldier to extirpate my fellow beings, or be called upon as a citizen to contribute my property to their extirpation? whether I tell the truth with that firmness and unreserve which 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 justice, or quietly submit to the exile of a family of whose claims I am an advocate, or to the subversion of liberty for which every man should be ready to die? Nothing can be more clear, than that the value of religion, or of any other species of abstract opinion, lies in its moral tendency. If I should be ready to set at nought the civil power for the sake of that which is the means, how much more when it rises in contradiction to the end?
Best practicable criterion of duty: Of all human concerns morality is the most interesting. It is the perpetual associate of our transactions: there is no situation in which we can be placed, no alternative that can be presentedbook vii. chap. ii 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 eternal reason that are equally obligatory wherever man is to be found. “But the rules of justice often appear to us obscure, doubtful and contradictory; what criterion shall be applied to deliver us from uncertainty?” There are but two criterionsnot the decisions of other men: 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 understandings? However we may strain after implicit faith, will not conscience in spite of ourselves whisper us, “This decree is equitable, and this decree 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 understandings, what sort of beings should we become? By the terms of the proposition we should not be rational: the nature of things would prevent us from being moral, for morality is the judgment of reason, employed in determining on the effects to result from the different kinds of conduct we may observe.
but of our own understanding. Hence it follows that there is no criterion of duty to any man but in the exercise of his private judgment. Whatever attempts book vii. chap. ii to prescribe to his conduct, and to deter him from any course of action by penalties and threats, is an execrable tyranny. There may be some men of such inflexible virtue as to set human ordinances at defiance. It is generally believed that there are others so depraved, that, were it not for penalties and threats, the whole order of society would be subverted by their excesses. But what will become of the great mass of mankind, who are neither so virtuous as the first, nor so degenerate as the second? They are successfully converted by positive laws into latitudinarians and cowards. They yield like wax to the impression that is made upon them. Directed to infer the precepts of duty from the dicta of the magistrate, they are too timid to resist, and too short sighted to detect the imposition. It is thus that the mass of mankind have been condemned to a tedious imbecility.
Tendency of coercion. There is no criterion of duty to any man but in the exercise of his private judgment. Has coercion any tendency to enlighten the judgment? Certainly not. Judgment is the perceived agreement or disagreement of two ideas, the perceived truth or falshood of any proposition. Nothing can aid this perception, that does not set the ideas in a clearer light, that does not afford new evidence of the substantialness or unsubstantialness of the proposition. The direct tendency of coercion is to set our understanding and our fears, our duty and our weakness at variance with each other. And how poor spirited a refuge does coercion afford? If what you require of me is duty, arebook vii. chap. ii there no reasons that will prove it to be such? If you understand more of eternal justice than I, and are thereby fitted to instruct me, cannot you convey the superior knowledge you possess from your understanding into mine? Will you set your wit against one who is intellectually a child, and because you are better informed than I, assume, not to be my preceptor, but my tyrant? Am I not a rational being? Could I resist your arguments, if they were demonstrative? The odious system of coercion, first annihilates the understanding of the subject, and then of him that adopts it. Dressed in the supine prerogatives of a master, he is excused from cultivating the faculties 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, and if he were obliged to sharpen his faculties, and collect his powers, as the only means of effecting his purposes?
Let us reflect for a moment upon the species of argument, if argument it is to be called, that coercion employs. It avers to its victim that he must necessarily be in the wrong, because I am more vigorous and more cunning than he. Will vigour and cunning be always on the side of truth? Every such exertion implies in its nature a species of contest. This contest may be decided before it is brought to open trial by the despair of one of the parties. But it is not always so. The thief that by main book vii. chap. ii force surmounts the strength of his pursuers, or by stratagem and ingenuity escapes from 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 this appeal includes? It is not easy to decide which of the two is most deeply to be deplored, the magistracy, the representative of the social system, that declares war against one of its members, in the behalf of justice, or in the behalf of oppression. In the first we see truth throwing aside her native arms and her intrinsic advantage, and putting herself upon a level with falshood. In the second we see falshood 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 palpable than that which pretends to bring the two 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 odious inconsistencies impose on mankind? The pursuit commenced against the supposed offender is the posse comitatus, the armed force of the whole, drawn out in suchbook vii. chap. ii 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 good againstIts various classes considered. 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 may be subjected to an irresistible dilemma. The right of the parent over his child 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 book vii. chap. ii 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 mould me to his purposes by argument, no doubt he would. He pretends to punish me because his argument is important, but he really punishes me because his argument is weak.
of the purposes of coercion.
nature of defence considered.—coercion for restraint—for reformation.—supposed uses of adversity—defective—unnecessary.—coercion for example—1. nugatory.—the necessity of political coercion arises from the defects of political institution.—2. unjust.—unfeeling character of this species of coercion.
Proceed we to consider three principal ends that coercionbook vii. chap. iii 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 coercion. In this examination I shall take it for granted that the persons with whom I am reasoning allow, that the ends of restraint and example may be sufficiently answered in consistency with the end of reformation, that is, without the punishment of death. To those by whom this is not allowed in the first instance, the subsequent reasonings will only apply with additional force.
book vii. chap. iii Nature of defence considered. 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 meditation will not leave us without our difficulties. 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!” and with these few words drove him to flight; it was, that he had so energetic an idea compressed in his mind, as to make its way with irresistible force to the mind of his executioner. If there were falshood and prejudice mixed with this idea, can we believe that truth is not more powerful than they? 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 with these habits? Who shall say how far the whole species might be improved, were they accustomed to despise force in others, and did theybook vii. chap. iii refuse to employ it for themselves?
But the coercion we are here considering is exceedinglyCoercion for restraint: different. It 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 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 it is to be feared he will commit.” This is the very argument which has been employed to justify the most execrable of all tyrannies. By what reasonings have the inquisition, the employment of spies and the various kinds of public censure directed against opinion been vindicated? Because there is an intimate connexion between men's opinions and their conduct: because 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 dissipates his property at the gaming-table, or who is accustomed to profess that upon any emergency he 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 book vii. chap. iii any violence to be committed on my neighbour. Nor are they oftener unjust than they are 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 to 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 argument under this head is, that all coercion 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.
for reformation. The second object which coercion 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 generation of virtue. 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 there any perverseness that canbook vii. chap. iii resist the evidence of which truth is capable.
But to this it may be answered, “that this viewof the subjectSupposed uses of adversity: may indeed be abstractedly true, butthat it is not true relative to the present imperfectionof human faculties. The grand requisite for the reformationand improvement of the human species, seems to consistin the rousing of the mind. It is for this reason thatthe school of adversity has so often been consideredas the school of virtue. In an even course of easyand prosperous circumstances the faculties sleep. But, when great and urgent occasion is presented, it shouldseem that the mind rises to the level of the occasion. Difficulties awaken vigour and engender strength; andit will frequently happen that the more you check andoppress me, the more will my faculties swell, tillthey 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.
book vii. chap. iii defective: 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? Can that which in its genuine and unlimited state is the worst, become by a certain modification and diluting the best of all things? 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 is most intimately connected. 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 dread of present pain, and the pusillanimous terror 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 unmoved the violence that was employed against them. Can this be the best possible mode of forming men to virtue? If it be, perhaps it is farther 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 awaken the mindbook vii. chap. iii unnecessary. without the aid of adversity. Truth does not consist in a certain number of unconnected propositions, but in evidence that shows their reality and their value. 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, tell me the truth with energy. For that purpose, thoroughly understand it yourself, impregnate your mind with its evidence, and speak from the clearness of your view, and the fulness 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 doubted, but such an education would be much more effectual for the improvement of the mind, than all the modes of angry or benevolent coercion that can be devised.
The last object which coercion proposes is example. Had legislatorsCoercion for example: 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 then thought too great. Ingenious cruelty was busied to find new means of torturing the victim, or of rendering the spectacle impressive and horrible.
book vii. chap. iii 1. nugatory. It has long since been observed that this system of policy constantly fails of its purpose. Farther 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* . The reason of this phenomenon is that, whatever may be the force with which novelty strikes the imagination, the unchangeable principles of reason speedily recur, and assert their indestructible empire. We feel the emergencies to which we are exposed, and we feel, or we think we feel, the dictates of truth directing 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 unalterable 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?
The necessity of political coercion arises from the defects of political institution. With what repugnance shall we contemplate the present forms of human society, if we recollect that the evils which they thus mercilessly avenge, owe their existence to the vices of those verybook vii. chap. iii forms? It is a well known principle of speculative truth, that true self love and social prescribe to us exactly the same species of conduct* . Why is this acknowledged in speculation and perpetually contradicted in practice? Is there any innate perverseness in man that continually hurries him to his own destruction? This is impossible; for man is thought, and, till thought began, he had no propensities either to good or evil. My propensities are the fruit of the impressions that have been made upon me, the good always preponderating, because the inherent nature of things is more powerful than any human institutions. The original sin of the worst men, is in the perverseness of these institutions, the opposition they produce between public and private good, the monopoly they create of advantages which reason directs to be left in common. What then can be more shameless than for society to make an example of those whom she has goaded to the breach of order, instead of amending her own institutions, which, by straining order into tyranny, produced the mischief? Who can tell how rapid would be our progress towards the total annihilation of civil delinquency, if we did but enter upon the business of reform in the right manner?
Coercion for example, is liable to all the same objections as2. unjust. coercion for restraint or reformation, and to certain other objections peculiar to itself. It is employed against a person not book vii. chap. iii 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 willUnfeeling character of this species of coercion. 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 treated myself 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 desert, which is absurd, or mischief I may be expected to perpetrate, or lastly a tendency to 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 can form 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.
of the application of coercion.
delinquency and coercion incommensurable—external action no proper subject of criminal animadversion—how far capable of proof.—inquity of this standard in a moral—and in a political view.—propriety of aretributiontobemee measured by the intention of the offender considered.—such a project would overturn criminal law—would abolish coercion.—inscrutability, 1. of motives—doubtfulness of history—declarations of sufferers.—2. of the future conduct of the offender—uncertainty of evidence—either of the facts—or the intention.—disadvantages of the defendant in a criminal suit.
Afarther consideration, calculated to show, not onlybook vii chap. iv delinquency and coercion incommensurable. the absurdity of coercion for example, but the iniquity of coercion in general, is, that delinquency and coercion are in all cases incommensurable. No standard of delinquency ever has been or ever can be discovered. No two crimes were ever alike; book vii. chap. iv. 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 in the most satisfactory manner the truth of these propositions.
External action no proper subject of criminal animadversion: Man, like every other machine the operations of which can be made the object of our senses, may be said, relatively, not absolutely speaking, 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 philosophers, 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 preserved only in the dispassionate speculation of philosophers* .”
It is true that we may in many instances be tolerably informedbook vii. chap. iv. how far capable of proof. 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, 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 iniquityIniquity of this standard in a moral: 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 injuryand in a political view. sustained by the community is by no means the same in these two cases; the injury sustained by the community is to be book vii. chap. iv. 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 varied intentions, as if this confusion were unlimited. The delinquencies recited upon a former occasion, of “one man that commits murder, to remove a troublesome observer of his depraved dispositions, who will otherwise counteract and expose him to the world; a second, because he cannot bear 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; and any of these, either from momentary impulse, or any of the infinite shades of deliberation* ;”—are delinquencies all of them unequal, and entitled to a very different censure in the court of reason. 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 not this system, from whatever pretencesbook vii. chap. iv. 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 judgment, “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 sole emolument!”
But suppose, secondly, that we were to take the intention ofPropriety of a retribution to be measured by the intention of the offender considered. the offender, and the future injury to be apprehended, as the standard of infliction. This would no doubt be a considerable improvement. This would be the true mode of reconciling coercion 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 administring retribution should be seriously attempted. It is to be 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 coercion.
It would immediately lead to the abolition of all criminal law.Such a project would overturn criminal law: An enlightened and reasonable judicature would have recourse, in order to decide upon the cause before them, to no code but book vii. chap. iv. 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 of the case under their inspection. They would feel the absurdity of bringing every error 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.*
would abolish coercion. The greatest 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 iniquitous it is in them to attempt to wield the rod of retribution.Inscrutability 1. of motives. 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 presumptuous 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 it to one principle when it in reality proceeds from another? Can we expect that a mere spectator should form a judgment sufficiently correct, when he who has all the sources of information in his hands, is nevertheless mistaken? Is it not to this hour abook vii. chap. iv. 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* .” 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 lights 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 book vii. chap. iv. hurries the mind into a certain action by a sort of incontinence of nature almost without any assignable motive, and how muchdoubtfulness of history: 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 upon us the impenetrableness of the human heart. Will moderate men pretend that we have not an hundred times more evidence upon which to found our judgment in these cases, than in that of the man who was tried last week at the Old Bailey?declarations of sufferers. This part of the subject will be put in a striking light, if we recollect the narratives that have been written 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 a just man can read, terminating in a verdict of guilty, without feeling an uncontrolable 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,book vii. chap. iv. against which every enlightened reasoner exclaims with horror.
But this is not all. The motive, when ascertained, is only2. of the future conduct of the offender. 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 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 propel him to the same enormity? Precaution is in the nature of things a step in the highest 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 book vii. chap. iv. of coercion 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.
Uncertainty of evidence: One more argument calculated to prove the absurdity of the attempteither of the facts: to proportion delinquency and suffering to each other may be derived from the imperfection of evidence. The veracity of witnesses will be to an impartial spectator 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 an 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.book vii. chap. iv. 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 vanity 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 questionor the intention. 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? And yet in an affair, that involves my life, my fame and my future usefulness, I am obliged to trust to any vulgar and casual observer.
A man properly confident in the force of truth, would considerDisadvantages of the defendant in a criminal suit. a public libel upon his character as a trivial misfortune. But a criminal trial in a court of justice is inexpressibly different. Few book vii. chap. iv. 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, 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 coercion. 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.
of coercion considered as a temporary expedient.
arguments in its favour.—answer.—it cannot fit men for a better order of society.—the true remedy to private injustice described—is adapted to immediate practice.—duty of the community in this respect.—duty of individividuals.—illustration from the case of war—of individual defence.—application.—disadvantages of anarchy—want of security—of progressive enquiry.—correspondent disadvantages of despotism.—anarchy awakens, despotism depresses the mind.—final result of anarchy—how determined.—supposed purposes of coercion in a temporary view.—reformation—example—restraint.—conclusion.
Thus much for the general merits of coercion consideredbook vii. chap. v. as an instrument to be applied in the government of men. It is time that we should enquire into the arguments by which it may be apologised as a temporary expedient. No introduction book vii. chap. v. 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 allcases where its necessity cannot be clearly demonstrated.
Arguments in its favour. The arguments in favour of coercion as a temporary expedient are obvious. It may be alledged 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.”
Answer. One of the remarks that most irresistibly suggest themselvesIt cannot fit men for a better order of society. upon this statement is, that coercion has no proper tendency to prepare men for a state in which coercion shall cease. It is absurd 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 supposedbook vii. chap. v. The true remedy to private injustice described: utility of coercion, 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 coercion, 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* , that by the mere simplicity of its structure would infallibly 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 would necessarily 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 solid benefit and happiness to a single individual.
Another observation which this consideration immediatelyis adapted to immediate practice. 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 book vii. chap. v. ill constituted governments have implanted, before they can be dismissed from the coercion to which they are at present subjected. In that case 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 indued, 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.
Duty of the community in this respect. A farther consequence that may be deduced from the principles that have here been delivered, is that coercion of a domestic kind 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 coercion.book vii. chap. v. If in this sense coercion has been deemed necessary as a temporary expedient, the opinion admits of satisfactory refutation. Coercion 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 coercion cannot be admitted so muchDuty of individuals. 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 is, in the first place, to display with all possible perspicuity the advantages of an improved state of society, and to be indefatigable in detecting the imperfections of the constitution under which they live. 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 not less real, than their obligation to promote its future and permanent advantage. In reality 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 indispensibly necessary to general security. It is therefore the duty of individuals to take an active share upon occasion, in book vii. chap. v. so much coercion, and in such parts of the existing system, as shall be sufficient to prevent the inroad 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 good; of consequence are virtuous, and what no just man will refuse to perform.
Illustration from the case of war: 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 is an insufficient 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 drop their pursuit. Let us suppose 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 obey them, much bloodshed might perhaps be avoided: but a more lasting evil would result. They would fix garrisons in our country, and torment us with perpetual injustice. Supposing even it were granted that, if thebook vii. chap. v. invaded nation should conduct itself with unalterable constancy upon the principles of reason, 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 would 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 doesof individual defence. not appear that any advantage can result from my forbearance, adequate to the disadvantages of my 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 expence of a certain degree of coercion.
The case of an offender, who appears to be hardened in guilt,Application. 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 book vii. chap. v. 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 coercion.
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 to-morrow, unless that dissolution were the result of consistent and digested views of political justice previously disseminated 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 attached 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 accuratelybook vii. chap. v. Disadvantages of anarchy: than we have hitherto done the evils of anarchy. Such a review will afford us a criterion by which to discern, as well the comparative value of different institutions, as the precise degree of coercion which must be employed for the exclusion of universal violence and tumult.
Anarchy in its own nature is an evil of short duration. Thewant of security: 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. Inof progressive enquiry. such a state we must bid farewel 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 corruscations of the meteor, not like the mild illumination of book vii. chap. v. 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.
Correspondent disadvantages of despotism. 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 certainly not worse than despotism, with this difference 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 modern 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 the 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 tobook vii. chap. v. its spirit and its history will 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 despotismAnarchy awakens, despotism depresses the mind. are strongly contrasted with each other. Anarchy awakens mind, diffuses energy and enterprize 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. Every thing 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 eminence 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 enter on its career. The inhabitants of such countries are 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 isFinal result of anarchy:book vii. chap. v. that of the manner 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 has gone before. And it does not seem impossible that it should lead to the best form of human society, that the most penetrating philosopher is able to conceive. Nay, it has something in it that suggests the likeness, a distorted and tremendous likeness, of true liberty. Anarchy has commonly been generated by the hatred of oppression. It is accompanied with a spirit of independence. It disengages men from prejudice and implicit faith, and in a certain degree incites them to an impartial scrutiny into the reason of their actions.
how determined. 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,book vii. chap. v. as it has sometimes been represented.
It is not reasonable to expect that a short period of anarchy should do the work of a long period of investigation and philosophy. When we say, that it disengages men from prejudice and implicit faith, this must be understood with much allowance. It tends to loosen the hold of these vermin upon the mind, but it does not instantly convert ordinary men into philosophers. Some prejudices, that were never fully incorporated with the intellectual habit, it destroys; but other prejudices it arms with fury, and converts into instruments of vengeance.
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, reflexion 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 every total revolution is a species of anarchy) promise much happier effects 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. Falshood 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 book vii. chap. v. is infallible. If vigilance and wisdom be successful in their present opposition to anarchy, every benefit will be ultimately obtained, untarnished with violence, and unstained with blood.
These observations are calculated to lead us to an accurate estimate of the mischiefs of anarchy, and prove that there are forms of coercion and government more injurious in their tendency than the absence of organisation itself. They also prove that there are other forms of government which deserve in ordinary cases to be preferred to anarchy. Now it is incontrovertibly clear that, where one of two evils is inevitable, the wise and just man will 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.
Supposed purposes of coercion in a temporary view: 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 coercion already enumerated must be proposed by the individuals by whom coercion is employed. And here it will be sufficient very briefly to recollect the reasonings that have been stated under each of these heads.
reformation: It cannot be reformation. To reform a man is to change the sentiments of his mind. Sentiments may be changed either forbook vii. chap. v. the better or the worse. They can only be changed by the operation of falshood or the operation of truth. Punishment we have already found, at least so far as relates to the individual, is injustice. The infliction of stripes upon my body can throw no new light upon the question between us. I can perceive in them nothing but your passion, your ignorance and your mistake. If you have any new light to offer, any cogent arguments to introduce; they will not fail, if adequately presented, to produce their effect. If you be partially informed, stripes will not supply the deficiency of your arguments. Whatever be the extent or narrowness of your wisdom, it is the only instrument by which you can hope to add to mine. You cannot give that which you do not possess. When all is done, I have nothing but the truths you told me by which to derive light to my understanding. The violence with which the communication of them was accompanied, may prepossess me against giving them an impartial hearing, but cannot, and certainly ought not, to make their evidence appear greater than your statement was able to make it.—These arguments are conclusive against coercion as an instrument of private or individual education.
But considering the subject in a political view it may be said, “that, however strong may be the ideas I am able to communicate to a man in order to his reformation, he may be restless and impatient of expostulation, and of consequence it may be necessary book vii. chap. v. to retain him by force, till I can properly have instilled these ideas into his mind.” It must be remembered that the idea here is not that of precaution to prevent the mischiefs he might perpetrate in the mean time, for that belongs to another of the three ends of coercion, that of restraint. But, separately from this idea, the argument is peculiarly weak. If the truths 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 season at which to communicate them, and not to betray the cause of truth 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 plead the cause of justice and eternal reason? 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 coercion for any other reason appear to be necessary; but that reformation cannot reasonably be made the object of coercion.
example: Coercion for the sake of example is a theory that can never be justly maintained. The coercion proposed to be employed, considered absolutely, is either right or wrong. If it be right, it should be employed for its own intrinsic recommendations. If it be wrong, what sort of example does it display? To do a thingbook vii. chap. v. for the sake of example, is in other words to do a thing to day, in order to prove that I will do a similar thing to-morrow. 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* 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 farther inforced, if we recollect what has already been said respecting the inexhaustible differences of different cases, and the impossibility of reducing them to general rules.
The third object of coercion according to the enumerationrestraint. already made is restraint. If coercion 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* : the amount of the necessity tending to supersede these objections has also been considered.
Conclusion. The subject of this chapter is of greater 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 shall supersede the necessity of coercion. 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* . But my power depends upon the disposition of the men by whom I am surrounded. If I were inlisted 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.
scale of coercion.
its sphere described.—its several classes.—death with torture.—death absolutely.—origin of this policy—in the corruptness of political institutions—in the inhumanity of the institutors.—corporalpunishmentx.—its absurdity—its atrociousness.—privation of freedom.—duty of reforming our neighbour an inferior consideration in this case.—its place defined.—modes of restraint.—indiscriminate imprisonment.—solitary imprisonment.—its severity.—its moral effects.—slavery.—banishment.—1. simple banishment.—2. transportation.—3. colonisation.—this project has miscarried from unkindness—from officiousness.—its permanent evils.—recapitulation.
It is time to proceed to the consideration of certain inferences that may be deduced from the theory of coercion which has now been delivered; nor can any thing be of greater book vii. chap. vi. importance than these inferences will be found to the virtue, the happiness and improvement of mankind.
Its sphere described. And, first, it evidently follows that coercion 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 much 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 undeniable 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 by which it can in any case be apologised, and that is, where the suffering the offender to be at large shall be notoriously injurious to the public security.
Its several classes. Secondly, the consideration of restraint as the only justifiable ground of coercion, will furnish us with a simple and satisfactory criterion by which to measure the justice of the suffering inflicted.
Death with torture. 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 thebook vii. chap. vi. desire to exhibit a terrible example on the other.
To deprive an offender of his life in any manner will appearDeath absolutely. to be unjust, since it will always be sufficiently practicable without this to prevent him from farther 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 devote to destruction, we sometimes meet with persons who subsequently to their offence have succeeded to a plentiful inheritance, or who for some other reason seem 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 the leading members 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 presented truth to his mind with calmness, perspicuity and benevolence, if book vii. chap. vi. 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 the sensation of considerable pain.
Origin of this policy: The true reasons in consequence of which these forlorn and deserted members of the community are brought to an ignominiousin the corruptness of political institutions: 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, the punishment of death is almost unknown. On the other hand the more there is in any country of inequality and oppression, the more punishments are multiplied.book vii. chap. vi. in the inhumanity of the institutors. 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, would have been as accomplished and susceptible as they, if they had only changed situations. When we behold a string of poor wretches brought out for execution, justice 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 appellationCorporal punishment. of corporal punishment is also proscribed by the system above established. Corporal punishment, unless so far as it is intendedIts absurdity. 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. Inanother view it is not possible to book vii. chap. vi. Its Atrociousness. express theabhorrence it ought to create. The genuine propensity of man is to venerate mindin 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 upunder the genial influence of instruction, the wisdom that is generated throughthe medium of unrestricted communication? How completely do violence and corporalinfliction reverse the scene? From this moment all the wholsome avenues of mindare closed, and on every side we see them guarded with a train of disgracefulpassions, hatred, revenge, despotism, cruelty, hypocrisy, conspiracy and cowardice. Man becomes the enemy of man; the stronger are seized with the lust of unbridleddomination, and the weaker shrink with hopeless disgust from the approach ofa fellow. With what feelings must an enlightened observer contemplate the furrowof a lash imprinted upon the body of a man? What heart beats not in unison withthe sublime law of antiquity, “Thou shalt not inflict stripes upon the bodyof a Roman?” There is but one alternative in this case on the part of thesufferer. 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 judgment ofhis 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 endureswill excite the honest indignation of his heart and fix the clear disapprobationof his intellect, will produce contempt and alienation, against his punisher.
The justice of coercion is built upon this simple principle:Privation of freedom. 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 exigence 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. Farther than this no circumstance can authorise 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 farther evil, when his power to injure is removed, is the wild and unauthorised dictate of vengeance and rage, the wanton sport of unquestioned superiority.
When indeed the person of the offender has been first seized,Duty of reforming our neighbour an inferior consideration in this case. there is a farther duty incumbent on his punisher, the duty of reforming him. 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 demonstrated, 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.
book vii. chap. vi. Its place described. 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 two circumstances be considered jointly, how the personal liberty of the offender may be least intrenched upon, and how his reformation may be best promoted.
Modes of restraint. The most common method pursued in depriving the offender of the liberty he has abused is to erect a public jail in whichIndiscriminate imprisonment. 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* , with the purest intentions,book vii. chap. vi. Solitary imprisonment. and who had paid a veryparticular attention to this subject, was struck withthe mischievous tendency of the reigning system, andcalled the attention of the public to a scheme of solitaryimprisonment. But this, though free from the defectsof the established mode, is liable to very weightyobjections.
It must strike every reflecting mind as uncommonly tyrannicalIts severity. 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 his 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 book vii. chap. vi. to any species of employment, to which in their youth they were wholly strangers. But he that is most fond of study has his moments when study pleases no longer. The soul yearns with inexpressible 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? No doubt a mind truly sublime would conquer this inconvenience: but the powers of such a mind do not enter into the present question.
Its moral effects. 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 wouldbook vii. chap. vi. teach justice and humanity, transplant those we would teach into a natural 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 theSlavery. relegation 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 out 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 book vii. chap. vi. of the school boy to that of the most unfortunate negro in our West India plantations, favourable to virtue.
Banishment. 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 be strange if any scheme of coercion or violence were not so. But it has been made appear still more exceptionable than it will be found in its intrinsic nature, by the crude and incoherent circumstances with which it has usually been executed.
1. Simple banishment. Banishment in its simple form is evidently unjust. The citizen whose residence we deem injurious in our own country, we have no right to impose upon another.
2. Transportation. 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.
3. Colonization. The true species of banishment is removal to a country yet unsettled. The labour by which the untutored 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 ofbook vii. chap. vi. this, whether we consider it as a real history, or as the ingenious fiction of a man 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 rendered abortive this reasonableThis project has miscarried: project. First, that the mother country pursues this species of colony with her hatred. Our chief anxiety is in realityfrom unkindness: to render its residence odious and uncomfortable, with the vain idea of deterring offenders. Our 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 love 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 to the result of mature reflection banishment to the Hebrides, would appear as effectual as banishment to the Antipodes.
book vii. chap. vi. from officiousness. 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. It is a mark of the profoundest ignorance of the nature of man, to 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 often proceed with a sagacity and public spirit that might put the proudest monarchies to the blush.
Its permanent evils. Meanwhile let us not forget the inherent vices of coercion, which present themselves from whatever point the subject is viewed. Colonization seems to be 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 are calculated to bring back the mind to the absolute injustice of coercion, and to render us inexpressibly anxious for the advent of that policy by which it shall be abolished.
To conclude. The observations of this chapter are relative tobook vii. chap. vi. Recapitulation. 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 indispensibly necessary. He will no doubt endeavour to meliorate those institutions with which he cannot persuade his countrymen to part. He will decline all concern in the execution of such, as abuse the plea of public security to the most 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 uniformly in this way contribute to the repeal of all laws, that wantonly usurp upon the independence of mankind, either by the multiplicity of their restrictions, or severity of their sanctions.
difficulties to which this subject is liable—exemplified in the distinction between overt actions and intentions.—reasons against this distinction.—principle in which it is founded.
book vii. chap. vii.Having sufficiently ascertained 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.
Difficulties to which this subject is liable: The difficulties to which the subject of evidence is liable, have been repeatedly stated in the earlier divisions of this work* . 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 sufficebook vii. chap. vii. 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 theexemplified in the distinction between overt acts and intentions. animadversion of criminal justice, in the samemanner as direct acts of offence?”
The arguments in favour of their being thus subjected are obvious.Reasons against this distinction. “The proper object of political superintendence is not the past, but the future. Society cannot justly employ coercion 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.” And yet all governments have agreed either to pass over the menace in silence, or to subject the offender to a much less degree of coercion, than they employ against him, by whom book vii. chap. vii. the crime has been perpetrated. It may be right perhaps to yield them some attention when they thus agree in forbearance, though little undoubtedly is due to their agreement in inhumanity.
Principle in which it is founded. 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 coercion in general, and the extreme mischief that may attend our restrainingbook vii. chap. vii. 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.
arguments by which it is recommended.—answer.—law is, 1. endless—particularly in a free state.—causes of this disadvantage.—2. uncertain—instanced in questions of property.—mode in which itmustbestudiedx20.—3. pretends to foretel future events.—laws are a species of promises—check the freedom of opinion—are destructive of the principles of reason.—dishonesty of lawyers.—an honest lawyer mischievous.—abolition of law vindicated on the score of wisdom—of candour—from the nature of man.—future history of political justice.—errors that might arise in the commencement.—its gradual progress.—its effects on criminal law—on property.
book vii. chap. viii.Afarther 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 onebook vii. chap. vii. of the most important topics upon which human intellect can be employed. It is law which has hitherto been regarded in countries calling themselves civilised, 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 fairly estimate 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 informationto the different members of theArguments by which it is recommended. community respectingthe principles which will be adopted in deciding upontheir actions.” It has been represented as thehighest degree of iniquity, “to try men by an expost facto law, or indeed in any other manner thanby the letter of a law, formally made, and sufficientlypromulgated.”
How far it will be safe altogether to annihilate this principleAnswer. 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. book vii. chap. viii. If it be deemed criminal in any society to wear clothes of a particular texture, or buttons of a particular composition, it is natural 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* .
Law is, 1. endless: One result of the institution of law is, that the institution once begun, can never be brought to a close. Edict is heapedparticularly in free states. 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 farther we proceed in the path it marks out to us, the more shall we be bewildered. No task can be more hopeless 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.
Causes of this disadvantage. 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 otherbook vii. chap. viii. action, had ever the fame 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 infinite. The alternative that remains, is either to wrest the law to include a case which was never in the contemplation of the author, 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, every thing cannot be thus done. The abuse would 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 find out subterfuges that reduce the law to a 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.
book vii. chap. viii. 2. uncertain: The consequence of the infinitude of law is its uncertainty. This strikes directly 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 depend upon. How well haveinstanced in questions of property. 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 their 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 depend upon, 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.
Mode in which it must be studied. He that would study the laws of a country accustomed to legal security, must begin with the volumes of the statutes. Hebook vii. chap. viii. 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 depend upon, and there is not at this day a lawyer existing in Great Britain, presumptuous and 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 extricated. 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 farther consideration that will demonstrate the absurdity of3. pretends to foretel future events. 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 meritsLaws are a species of promises: in this respect have already been decided under the head of book vii. chap. viii. promises* . 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 nocheck the freedom of opinion: 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 perfectibility 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.
are destructive of the principles of reason. 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† . 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* .” There is nobook vii. chap. viii. 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 the only 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 cannot hesitate to conclude universally that law is an institution of the most pernicious tendency.
The subject will receive some additional elucidation, if weDishonesty of lawyers. 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 a 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 the creatures of the necessities 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 book vii. chap. viii. 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 we saw the 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 he will not escape), than he that enters into it with ardour and devotion.
An honest lawyer mischievous. 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. It may appear indeed a paradox to affirm that virtue can be more pernicious than vice.book vii. chap. viii. But the true solution of this difficulty lies in the remark, that virtue, such as is here described, is impossible. We may amuse ourselves with enquiring in such instances as this whether theory could not afford us a better system of intellectual progress than the mixed system which takes place in the world. But the true answer probably is, that what we call vice is mere error of the understanding, a necessary part of the gradation that leads to good, and in a word that the course of nature and the course of a perfect theory are in all cases the same.
The true principle which ought to be substituted in the roomAbolition of law vindicated on the score of wisdom: of law, is that of reason exercising an uncontroled 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 monopolising 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 condemnation 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 book vii. chap. viii. having no authority, but that which they derive from the reasons that support them.
of candour: It may however be alledged 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 exercise of coercion.” This is the most considerable argument that can be adduced in favour of the prevailing system, and therefore deserves a mature examination.
from the nature of man: 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 perpetually in mind the structure of man. It must be admitted that we are imperfect, ignorant, the slaves of appearances. 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, 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 endue truth with a visible form, and then repair to the oracle we had erected.
The case respecting law is exactly parallel to this. Menbook vii. chap. viii. 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 appearance 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* : 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 book vii. chap. viii. 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 intrenched, 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;book vii. chap. viii. 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 progressiveFuture history of political justice. establishment of justice in the state of things which is here recommended. At first it may be a few decisions will be madeErrors that might arise in the commencement. 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 cloke 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 among them all, 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 things is indispensibly necessary, either numbers book vii. chap. viii. or 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.
Its gradual progress. 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 intrusted, 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 foretel the result, the dethronement of implicit faith and the inauguration of unclouded justice.
Its effects on criminal law: Some of the conclusions of which this state of things would be the harbinger, have been already seen in the judgment that would be made of offences against the community* . Offences arguing infinite variety in the depravity from which they sprung,book vii. chap. viii. 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.
Let us consider the effects of the abolition of law as iton property. respects the article of property. As soon as the minds of men became somewhat weaned from the unfeeling uniformity of the present system, they would begin to enquire after equity. In this situation let us suppose a litigated succession brought before them, to which there were five heirs, and that the sentence of their old legislation had directed the division of this property into five equal shares. They would begin to enquire into the wants and situation of the claimants. The first we will suppose to have a fair character and be prosperous in the world: he is a respectable member of society, but farther wealth would add little either to his usefulness or his enjoyment. The second is a miserable object, perishing with want, and overwhelmed with calamity. The third, though poor, is yet tranquil; but there is a situation to which his virtue leads him to aspire, and in which he may be of uncommon service, but which he cannot with propriety accept, without a capital equal to two fifths of the whole succession. One of the claimants is an unmarried woman past the age of childbearing. Another is a widow, unprovided, and with a numerous family depending on her book vii. chap. viii. succour. The first question that would suggest itself to unprejudiced persons, having the allotment of this succession referred to their unlimited decision, would be, what justice is there in the indiscriminate partition which has hitherto prevailed? This would be one of the early suggestions that would produce a shock in the prevailing system of property. To enquire into the general issue of these suggestions is the principal object of the following book.
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.
their absurdity.—their origin.—their abuses.—their arbitrary character.—destructive of morality.
book vii. chap. ix.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 subject of pardons.
The very word to a reflecting mind is fraught with absurdity.Their absurdity. “What is the rule that ought in all cases to prescribe to 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 rectitude of my suffering must be founded in its tendency to promote the general welfare. He book vii. chap. ix. therefore that pardons me, iniquitously prefers the imaginary 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, do a benefit to me and no injury to others?” He will then be a notorious delinquent, if he allow me to suffer. There is indeed a considerable defect in this last supposition. If, while he benefits me, he do no injury to others, he is infallibly performing a public service. If I suffered in the arbitrary manner which the supposition includes, the whole 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 the interest of 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.
Their origin. The pernicious effects 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,book vii. chap. ix. that its ministers either dreaded the resistance of the people if it were indiscriminately executed, or themselves shrunk with spontaneous repugnance from the devastation it commanded. The system of pardons naturally associates with the system of law; for, though you may call every 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 instances the same treatment. Define murder as accurately as you 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 theTheir abuses. other, to be constituted? Here lies the essence of the matter; the rest is form. A jury is impanelled, to tell you the generical name of the action; a judge presides, to read out of the vocabulary of law the sentence annexed to that name; last of all, comes the court of enquiry which is to decide whether the remedy of the dispensatory be suitable to the circumstances of this particular case. This authority has usually been lodged in the first instance with the judge, and in the last resort with the king in council. Now, laying 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 book vii. chap. ix. this respect as a matter purely incidental, exercise them with supineness, and in many instances with the most scanty materials to guide their judgment. This grows in a considerable degree out of the very name of pardon, which implies a work of supererogatory benevolence.
Their arbitrary character. 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 of consequence the lives of a thousand victims are immolated in vain. Not more than one half or one third of the offenders whom the law condemns to death in this metropolis, are made to suffer the sentence that is pronounced. 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 her decisions would be such as menbook vii. chap. ix. practised in our present courts are totally unable to conceive.
Another very important consequence grows out of the systemDestructive of morality. of pardons. A system of pardons is a system of unmitigated slavery. I am taught to expect a certain desirable event, from what? From the clemency, the uncontroled, 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 rectitude 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 book vii. chap. ix. the general good. I may be base enough to 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 complete sense of equality, which is the only immoveable basis of virtue and happiness.
[*]Book V, Chap. XX.
[†]Book V, Chap. XII. Book VI, passim.
[*]Book IV, Chap. VI.
[*]Book II, Chap. VI.
[*]Beccaria, Dei Delitti e delle Pene.
[*]Book IV, Chap. IX.
[*]“Questa è una di quelle palpabili verità, che per una maraviglisa combinazione di circostanze non sono con decisa sicurezza conosciute, che da alcuni pochi pensatori uomini d’ogni nazione, e d’ogni secolo.” Dei Delitti e delle Pene.
[*]Book II, Chap. VI, p. 131.
[*]“Questa [l’intenzione] dipende dalla impressione attuale degli oggetti, et dalla precedente disposizione della mente: esse variano in tutti gli uomini e in ciascun nomo colla velocissima successione idee, delle passioni, e delle circostanze.” He adds, “Sarebbe dunque necessario formare non solo codice particolare per ciascun cittadino, ma una nuova legge ad ogni delitto.”
[*]Book V, Chap. XXII, p. 565.
[*]Book V, Chap. XVI, p. 518.
[*]Book IV, Chap. VI, p. 308, 9.
[*]Book II, Chap. VI. Book VII, Chap. IV.
[*]Book VI, Chap. VIII, p. 671.
[*]Book III, Chap. III.
[†]Book II, Chap. VI, p. 131. Book VII, Chap. IV, p. 718.
[*]Summum jus summa injuria.
[*]Book V, Chap. XX, p. 548.
[*]Book II, Chap. VI, p. 131. Book VII, Chap. IV, p. 718.