Front Page Titles (by Subject) 288.: EXCEPTION TO THE OBJECTIONS TO NOMINAL PUNISHMENTS EXAMINER, 16 SEPT., 1838, PP. 578-9 - The Collected Works of John Stuart Mill, Volume XXIV - Newspaper Writings January 1835 - June 1847 Part III
Return to Title Page for The Collected Works of John Stuart Mill, Volume XXIV - Newspaper Writings January 1835 - June 1847 Part III
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
288.: EXCEPTION TO THE OBJECTIONS TO NOMINAL PUNISHMENTS EXAMINER, 16 SEPT., 1838, PP. 578-9 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXIV - Newspaper Writings January 1835 - June 1847 Part III 
The Collected Works of John Stuart Mill, Volume XXIV - Newspaper Writings January 1835 - June 1847 Part III, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The online edition of the Collected Works is published under licence from the copyright holder, The University of Toronto Press. ©2006 The University of Toronto Press. All rights reserved. No part of this material may be reproduced in any form or medium without the permission of The University of Toronto Press.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
EXCEPTION TO THE OBJECTIONS TO NOMINAL PUNISHMENTS
Lord Durham, who had gone to Canada after the rebellion of 1837 as High Commissioner, had been defended by Mill in “Lord Durham and His Assailants” in the 2nd ed. of the London and Westminster for August 1838 (CW, Vol. VI, pp. 437-43). The Examiner had printed two replies, probably by Fonblanque himself. The first, “Lord Durham and His Assailants,” 26 Aug., pp. 529-30, was a very favourable notice; the second, “Reasoning for Nominal Punishments,” 2 Sept., p. 545, was critical of Mill’s defence of the provision for capital punishment in Durham’s “An Ordinance to Provide for the Security of the Province of Lower Canada,” PP, 1837-38, XXXIX, 914-16. This letter to the editor, in the “Political Examiner,” defends the punishment. Headed as title, with the subhead “To the Editor of the Examiner,” it is signed “A.,” as was Mill’s “Lord Durham and His Assailants.” It is described in Mill’s bibliography as “A letter in defence of the last mentioned article [i.e., his “Lord Durham and His Assailants”], in the Examiner of 16 Sept. 1838”
(MacMinn, p. 51).
In the second of two very flattering notices which you have bestowed on the article in the London and Westminster Review, entitled “Lord Durham and his Assailants,” you have animadverted rather strongly on one sentence of the article, in which, speaking of the capital penalty denounced for the violation of Lord Durham’s Ordinance of Banishment, the writer says, “The penalty is capital because that is the usual penalty of state offences, and properly so, since any inferior punishment might be a premium on the offence, while, by denouncing the highest penalty of all, no necessity is incurred of actually inflicting it;”1 and you express, in a very courteous manner, your surprise that the author of the article should have overlooked the important principle, that the law should not denounce a severer punishment than it would be proper actually to inflict, and that punishments should be mild in order that they may be certain.
As the accusation of forgetting so important a principle of criminal legislation is one to which the author of the article feels particularly sensitive, perhaps you will permit him to assure you that the imputation is by no means deserved, and that instead of seeing in the mode of dealing with state offences, which he defended, any infringement of that great principle, he saw in it one of the exceptions which prove the principle. The sentiment which he expressed was grounded on the recognized, and, as on reflection you will certainly feel it, the just, distinction between political and ordinary criminal offences. The principle you so justly contend for is grounded on a most cogent reason, namely, that certainty in punishments has a greater effect than severity; but this reason is, as all philosophic jurists have acknowledged, and as you must at once see, entirely inapplicable to what are essentially the offences of multitudes. Certainty of punishment is neither desirable nor possible in cases of rebellion. It is desirable that no person whatever who commits theft or burglary should escape unpunished: is it desirable that no person whatever who joins in a rebellion should escape without suffering the penalties of the law? If the principle you contend for were applicable to political offences, an amnesty would be the most monstrous absurdity in all legislation. Who would endure to hear of an amnesty for robbery or murder? But in the case of rebellion the most savage tyrant hardly ever thinks of punishing with the arm of the law any but a few leaders; thus completely setting aside the principle of certainty of punishment. If the penalty for treason instead of death were but a fine of one shilling, no one would think of inflicting even that upon every individual of a defeated party.
Indeed, between state offences and all other offences there is this great difference: in the case of any other offence, to remedy the immediate evil which has been produced is a minor object, and the great purpose of punishment is example: but in the case of offences which arise out of the disaffection of the people with their government, and which aim at a change of government, the grand object is the immediate object, that of pacifying the country; punishment ought never to be carried beyond what is necessary to remedy the present evil, to prevent the present malcontents from breaking out again; if that can be prevented, and the country brought to a settled state without any punishment, there ought to be no punishment: there never should be any for the purpose of deterring future malcontents from future insurrections. The security against future discontents is the strength of the government (proved by the failure of the insurrection), and the goodness of the government (which it ought to lose no time in demonstrating by its healing measures). The rule for punishment is—for private offences punish mildly, that you may punish everybody: for offences connected with a rebellion, punish nobody, if you can tranquillize the country without punishment; but if you must punish, punish as few persons and as mildly as is consistent with that object. And on these principles all governments act more or less; all wise and humane governments altogether.
There is therefore no inconsistency in saying that for this kind of offences the severest penalty of the law should be denounced, although in most cases it ought not to be executed. You can never be sure beforehand that you can restore tranquillity without punishing those who may attempt to disturb it afresh; and since any punishment less than death may be less than the temptation to the offence, it is necessary to reserve the option of inflicting the highest punishment known to the law in case it should be necessary. But, as it is not proper to inflict any punishment unless the state of the country require it, so it is proper to inflict the mildest which the state of the country admits of, although the highest of all is and ought to be denounced.
To sum up all in a few words, insurrectionary offences differ from others in this, that in all other cases punishment, but in this case pardon, ought to be the general rule—or mitigation of punishment, when pardon would be unsafe. Other penal laws are made to be implicitly executed; laws against rebellion are made not to be executed without the most imperative necessity.
These, Sir, are no novelties; I am merely vindicating the received doctrines of statesmen and the established practice of all civilized governments; and the principles I have laid down are so completely in accordance with the general spirit of your writings on such topics, that your concurrence in them may be confidently anticipated.
[1 ]“Lord Durham and His Assailants,” p. 510; in CW, Vol. VI, p. 442.