" But what if he have a wife and children?" Let many aid him, if the aid of one be insufficient. Let him do in his lifetime, what Eudamidas did at his decease, bequeath his daughter to be subsisted by one friend, and his mother by another. This is the only tnie taxation, which he, in whom civil policy has vested the means, assesses on himself, not which he endeavours to discharge upon the shoulders of the poor. It is a striking example of the power of venal governments in generating prejudice, that this scheme of serving the public functions without salaries, so common among the ancient republicans, should, by liberal-minded men of the present day, be deemed impracticable. Nor let us imagine, that the safety of the community, will depend upon the services of an individual. In the country in which individuals fit for the public service are rare, the post of honour will probably be his, not that fills an official situation, but that, from his closet, endeavours to waken the sleeping virtues of mankind. In the country where they are frequent, it will not be difficult, by the short duration of the employment, to compensate for the sleuder- ness of the means of him that fills it.
15(J OP PENSIONS A.ND SALARIES.
It is not easy to describe the advantages that must result from this proceeding. The public functionary would, in every article of his charge, recollect the motives of public spirit and benevo- lence. He would hourly improve in the vigour and disinterested- ness of his character. The habits created by a frugal fare and a cheerful poverty, not hid as now in obscure retreats, but held forth to public view, and honoui-ed with public esteem, would speedily pervade the community, and auspiciously prepare them for still further improvements.
The objection, " that it is necessary for him who acts on the part of the public to make a certain figure, and to live in a style calculated to excite respect, is scarcely to be considered as deserving a separate answer. The whole spirit of this inquiry is in direct hostility to such an objection. If tlierefore it have not "been answered already, it would be vain to attempt an answer in this place. It is recorded of the burghers of the Netherlands who conspired to throw off the Austrian yoke, that they came to the place of consultation, each man with his knapsack of pro- visions: who is there that feels inclined to despise this simplicity and honourable poverty? Who would not exclaim with the im- perial minister when he viewed the spectacle. Men thus resolute and austere, are neither to be despised nor subdued? — The abolition of salaries would doubtless render necessary the simpli- fication and abridgment of public business. This would be a "benefit, and not a disadvantage.
It will further be objected, that there are certain functionaries, in the lower departments of government, such as clerks and tax- gatherers, whose employment is perpetual, and whose subsistence ought, for that reason to be made the result of their employment. If this objection were admitted, its consequences would be of subordinate importance. The office of a clerk or a tax-gatherer, is considerably similar to those of mere barter and trade; and therefore to degrade it altogether to their level, would have little resemblance, to the fixing such a degradation, upon offices that demand the most elevated character. The annexation of a stipend to such employments, if considered only as a matter of temporary accommodation, might perhaps be endured.
But the exception, if admitted, ought to be admitted with great caution. He that is employed in an affair of direct public necessity, ought to be conscious, while he discharges it, of its true character. We should never allow ourselves to undertake an office of a public nature, without feeling ourselves animated with a public zeal. We shall otherwise discharge our trust with comparative coldness and neglect. Nor is this all. The aboli- tion of salaries, would lead to the abolition of those oflices to which salaries are thought necessary. If we had neither foreign wars nor domestic stipends, taxation would be almost unknown; and, if we had no taxes to collect, we should want no clerks to keep an account of them. In the simple scheme of political institution which reason dictates, ^Ye could scarcely have any ON THE MODES OF DECIDING, ETC. 151 burthensome offices to discharge; and, if we had any that were so in their abstract nature, they might be rendered light by the perpetual rotation of their holders.
If we have no salaries, for a still stronger reason we ought to have no pecuniary qualifications, or, in other words, no regulation requiring the possession of a certain property, as a condition to the right of electing, or the capacity of being elected. It is an uncommon strain of tyranny to call upon men to appoint for tliemselves a delegate, and at the same time forbid them to appoint exactly the man whom they may judge fittest for the office. Qualification in both kinds is a most flagrant injustice. It asserts the man to be of less value tlian his property. It fur- nishes to the candidate a new stimulus to the accumulation of wealth; and this passion, when once set in motion, is not easily allayed. It tells him, "Your intellectual and moral qualifications may be of the highest order; but you have not enough of the means of luxuries and vice." To the non-elector it holds the most detestable language. It says, " You are poor; you arc un- fortunate; the institutions of society oblige you to bo the per- petual witness of other men's superfluity: because you are sunk this low, we will trample you yet lower; you shall not even be reckoned for a man, you shall be passed by, as one, of whom society makes no account, and whose welfare and moral existence she disdains to recollect."
CHAP. X.
OF THE MODES OF DECIDING A QUESTION ON THE PART OF THE COM- MUNITY.
Decisiop hu lot, its origin — -founded in moral imbecility — or cowardice, — Decision by ballot — inculcates timidity — and hypocrisy. — Decision by vote, its recommendations.
What has been here said upon the subject of qualifications, naturally leads to a few observations upon the three principal modes of determining public questions and elections, by sortition, ballot, and vote.
The idea of sortition was first introduced by the dictates of superstition. It was supposed that, when human reason piously acknowledged its insufficiency, the Gods, pleased with so un- feigned a homage, interfered to guide the decision. This imagi- nation is now exploded. Every man who pretends to philosophy, yill confess, that, wherever sortition is introduced, the decision is exclusively guided by the laws of impulse and gravitation. — Strictly speaking, we know of no such thing as contingence,.
152 ON THE MODES OF DECIDING A QUESTION But, so far as relates to the exercise of apprehension and judg- ement on tlie particular question to be determined, all decision by lot is the decision of contingence. The operations of impulse and gravitation, either proceed from a blind and unconscious principle; or, if they be the offspring of a superintending mind, it is mind executing general laws, not temporising with every variation of human caprice.
All reference of public questions and elections to lot, includes in it one of two evils, moral imbecility or cowardice. There is no situation in which we can be placed, that has not its corres- ponding duties. There is no alternative that can be offered to our choice, that does not include in it a better and a Avorse. The idea of sortition therefore springs, either from an effeminacy that will not enquire, or a timidity that dares not pronounce its decision.
The path of virtue is simple and direct. The first attributes of a virtuous character, are a mind awake, and a quick and observant eye. A man of right dispositions will enquire out the lessons of duty. The man, on the contrary, who is spoiled by Stupidity or superstition, will wait till these lessons are brought to him in a way that he cannot resist. A superficial survey will perhaps lead him to class a multitude of human transactions, among the things that are indifferent. But, if we be indeiatigably benevolent, w^e shall, for the most part, find, even among things ordinarily so denominated, a reason for preference. He may well be concluded to have but a small share of moral principle, who easily dispenses himself from seeking the occasion to exer- cise it. Add to which, they are not trifles, but matters of serious import, that it has been customary to commit to the decision of lot.
But, supposing us to have a sentiment of preference, or a con- sciousness that to attain such a perception is our duty, if we afterwards desert it, this is the most contemptible cowardice. Nothing can be more unworthy, than a propensity to take refuge in indolence and neutrality, simply because we have not the courage to encounter the consequences of ingenuousness and sincerity.
Ballot is a mode of decision still more censurable than sortition. It is scarcely possible to conceive a political institution, that includes a more direct and explicit patronage of vice. It has been said, "that ballot may in certain cases be necessary, to enable a man of a feeble character, to act with ease and inde- pendence, and to prevent bribery, corrupt influence and faction." Hypocrisy is an ill remedy to apply to the cure of weakness. A feeble and irresolute character might before be accidental; ballot is a contrivance to render it permanent, and to scatter its seeds over a wider surface. The true remedy for a want of con- stancy and public spirit, is to inspire firmness, not to inspire timidity. Sound and just conceptions, if communicated to the mind with perspicuity, may be expected to be a sufficient basis ON THE PART OF THE COMMUNITY. 153 for virtue. To tell men that it is necessary they should form their decision by ballot, is to tell them that it is necessary they should be ashamed of their integrity.
If sortition taught us to desert our duty, ballot teaches us to draw a veil of concealment over our performance of it. It points out to us a method of acting unobserved. It incites us to make a mystery of our sentiments. If it did this in the most trivial article, it would not be easy to bring the mischief it would pro- duce, within the limits of calculation. But it dictates this conduct in our most important concerns. It calls upon us to discharge our duty to the public, with the most virtuous con- stancy; but at the same time directs U5 to hide our discharge of it. One of the most beneficial principles in the structure of the material universe, will perhaps be foimd to be, its tendency to prevent our withdrawing ourselves from the consequences of our own actions. A political institution that should attempt to coimteract this principle, would be the only true impiety. How can a man have the love of the public in his heart, Avithout tlie dictates of that love flowing to his lips? When we direct men to act with secrecy, we direct them to act with frigidity. Virtue will always be an unusual spectacle among men, till they shall have learned to be at all times ready, to avow their actions, and assign the reasons upon which they are founded.
If then sortition and ballot be institutions pregnant with vice, it follows, that all social decisions should be made by open vote; that, wherever we have a function to discharge, we should reflect on the purpose for which it ought to be exercised; and that, whatever conduct we are persuaded to adopt, especially in affairs of general concern, should, most certainly in matters of routine and established practice, be adopted in the face of the world.
154 LIMITATIO^-S OF THE BOOK VII.
OP CRIMES AKD PUNISHMENTS.
CHAP. I.
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. — Force of the term, desert. — Conclusion.
The subject of punishment is perhaps the most fundamental in the science of politics. Men associated for the sake of mutual protection and benefit. It has already appeared, that the inter- nal affairs of such associations are of an inexpressibly higher importance than their external. * It has appeared that the action of society, in conferring rewards, and superintending opinion, is of pernicious effect.f Hence it follows that government, or the action of society in its corporate capacity, can scarcely be of any utility, except so far as it is requisite for the suppression of force by force; for the prevention of the hostile attack of one member of the society, upon the person or property of another, which prevention is visually called by the name of criminal justice, or punishment.
Before we can properly judge of the necessity or urgency of this action of government, it will be of some importance to con- sider 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 tlie society to occupy the post that I conceive most conducive to the general advantage, either in the mode of impressing soldiers and sailors, or by obliging a military officer, or a minister of state, to accept, or retain his appointment. I may put a valuable man to death for the common good, either because he is infected with a pesti- lential 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 also often used to signify, the voluntary infliction of evil upon a vicious being, Jiot merely because tlie public advantage demands it, but because * Book v., Cliap. XX. t Book v., Chap. XII.; Book VI., throughout.
DOCTRINE OP PUNISHMENT. 155 there is apprehended to be a certain fitness and propriety in the nature of things, that render suffering, abstractedly from the benefit to result, the suitable concomitant of vice.
The justice of punishment however, in this import of the word, can only be a deduction from the hypothesis of free-will, if indeed that hypothesis will siiificiently support it; and must be false, if human actions are 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 j a dagger of a certain form, is fitted to be his instrument. The one or the other excites a greater degree of disapprobation, iu 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 tliat are hurtful, and because it has a tendency by means of association to the exciting of evil thoughts. I view the assassin with more disap- probation than the dagger, because he is more to be feared, and it is more difficult to change his vicious structure, or to take from him his capacity to injure. The man is propelled to act by necessary causes and irresistible motives, which, having once occurred, are likely to occur again. The dagger has no quality adapted to the contraction of habits, and, though it have com- mitted a thousand murders, is not more likely (imless so far as those murders, being known, may operate as a slight associated motive with the possessor) to commit murder again. Except iu the articles here specified, the two cases are exactly parallel. The assassin cannot help the murder he commits, any more than the dagger.
These arguments are merely calculated to set in a more per- spicuous light a principle, which is admitted by many by whom the doctrine of necessity has never been examined; that the only measure of equity is utility, and whatever is not attended with any beneficial purpose, is not just. This is so evident, that few reasorilable and reflecting minds will be found inclined to deny it. Why do I inflict suffering on another? If neither for his own benefit nor the benefit of others, can I be right? Will resent- ment, 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 xnind more easily reconciles itself to this supposition is, that we • Vol. I., Book IV., Chap. VIIL 156 LIMITATIONS, ETC.
conceive existence to be less a blessing, tlian a curse, to a being incorrigibly vicious. But, in that case, the supposition docs 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 benevo- lence, if his situation were changed for the social, the second to malignity, tyranny and injustice, do Ave 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 ten- dency to render him miserable: shall we inflict calamity upon him, for this reason only, because he has already inflicted cala- mity upon himself? It is difficult for us to imagine to ourselves a solitary intellectual being, whom no future accident shall ever render social. It is difficult for us to separate, even 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 whei-e 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 desert, as it relates to a solitary being, will always have a tendency to mislead and perplex.
It has sometimes been alleged, tliat the course of nature has annexed suff'ering to vice, and has thus led us to the idea of punishment here referred to. Arguments of this sort should be listened to with great caution. It was by reasonings of a similar nature, that our ancestors justified the practice of religious per- secution: " 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 imiverse, are too liable to error respecting it, and see too small a portion, to entitle us to form our moral princi- ples upon an imitation of what we conceive to be the course of nature.
Thus it appears, whether we enter philosophically into the principle of human actions, or merely analyse the ideas of recti- tude and justice which have the universal consent of mankind, that, in the refined and absolute sense in which that term has frequently been employed, there is no such thing as desert; ia other words, that it cannot be just that we should inflict suffering on any man, except so far as it tends to good. Hence it follows.
GENERAL DISADVANTAGES OP PUNISHMENT. 157 also, that punishment, in the last of the senses enumerated towards the beginning of this chapter, by no means accords with any sound principles of reasoning. It is right that I should inflict suftering, in every case where it can be clearly shown that such infliction will produce an overbalance of good. But this inflic- tion bears no reference to the mere innocence or guilt of the person upon whom it is made. An innocent man is the proper subject of it, if it tend to good. A guilty man is the proper subject of it under no other point of view. To punish him, upon any hypothesis, for what is past and irrecoverable, and for the consideration of that only, must be ranked among the most per- nicious exhibitions of an untutored barbarism. Every man upon whom discipline is employed, is to be considered as to the pui'- pose of this discipline as innocent. The only sense of the word punishment, that can be supposed to be compatible with the principles of the present work, is that of pain inflicted on a person convicted of past injurious action, for the purpose of preventing future mischief.
It is of the utmost importance that we should bear these ideas constantly in mind, during our examination of the theory of punishment. This theory would, in the past transactions of mankind, have been totally difierent, if tliey had divested them* selves of the emotions of anger and resentment*; if they had considered the man who torments another for what he has done, as upon a par Avith the child who beats the table; if they had conjured up to their imagination, and properly estimated, the man, who should shut up in prison and periodically torture some atrocious criminal, from the mere consideration of the abstract congruity of crime and punishment, without a possible benefit to others or to himself; if they had regarded punishment, as that which was to be regulated solely, by a dispassionate calculation of the future, without suffering the past, on its own account, for a moment to enter into the proceeding.
CHAP. II.
GENERAL DISADVANTAGES OF PUNISHMENT.
Conscience in matters of religion considered — in the conduct of life. — Best practical criterion of duty — 7iot the decision of other men, but of our own understanding, — Tendency of coercion, — Its various classes considered.
Having thus endeavoured to show what denominations of punish- ment justice, and a soimd idea of the nature of man, would inva- riably proscribe, it belongs to us, in the furtlier prosecution of the subject, to consider merely that coercion, which it has been sup- 158 GENERAL DISADVANTAGES OF PUNISHMENT.
posed right to employ, against persons convicted of past injurious action, for the purpose of preventing future mischief. And here we -will, first, recollect what is the quantity of evil which accrues from all such coercion; and secondly examine the cogency of the various reasons by which it is recommended. It will not be pos- sible wholly to avoid the repetition of some of the reasons which occurred in tlie preliminary discussion of the exercise of private judgment.* But those reasonings will now be extended, and will perhaps derive additional advantage from a fuller arrangement.
It is commonly said, " that no man ought to be compelled, in matters of religion, to act contrary to the dictates of his con- science. Religion is a principle which the practice of all ages has deeply impressed upon the human mind. He that discharges what his apprehensions prescribe to him on the subject, stands approved to the tribunal of his own mind, and, conscious of rec- titude 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 endea- vour, by persecuting statutes, to compel liim to resign a false religion for a true. Arguments may convince, but persecution cannot. The new religion, which I oblige him to profess con- trary 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 depravity, when it is not consecrated by the testimony of a pure conscience. Truth is the second object in this respect, integrity of heart is the first: or ratlier a proposition that, in its abstract nature, is truth itself, convei-ts into rank falsehood and moral poison, if it be professed with the lips only, and abjured by the understanding. It is then the foul garb of hypocrisy. Instead of elevating the mind above sordid temptations, it perpetually reminds the worshipper of the degrading subjection to which he has yielded. Instead of filling him with sacred confidence, it overwhelms him with confusion and remorse."
The inference that has been made from these reasonings is, " that criminal law is eminently misapplied in affairs of religion, and that its true province is civil misdemeanours." But this distinction is by no means so satisfactory and well founded as at first sight it may appear.f Is it not strange that men should have affirmed religion to be the sacred province of conscience, while moral duty is to be left undefined to the decision of the magistrate? Is it of no consequence whether I be the benefactor of my species, or their bitterest enemy? whether I be an informer, or a robber, or a murderer? whether I be employed, as a soldier, to extirpate my fellow beings, or, as a citizen, contribute my property to their extirpation? whether I declare the truth, with that firmness and xmreserve which an ardent philanthropy will not fail to inspire, or suppress science, lest I be convicted of blasphemy, and fact, • Vol. I., Book II., Chap. VI. + Ibid.
GENERAL DISADVANTAGES OP PUNISHMENT. 159 lest I be convicted of a libel? whether I contribute my efforts for the furtherance of political improvement, or quietly submit to the exile of a prince of whose claims I am an advocate, or to the subversion of liberty, the most valuable of all human possessions? Nothing can be more clear, than that the value of religion, or of any other species of opinion, lies in its moral tendency. If I am to hold as of no accovmt the civil power, for the sake of that, which is tlie means, how much more when it rises in contradiction to the end?
Of all human concerns morality is the most interesting. It is the constant associate of all our transactions; there is no situation in which we can be placed, no alternative that can be presented to our choice, respecting which duty is silent. " What is the standard of morality and duty?" Justice. Not the arbitrary de- crees that are in force in a particular climate; but those laws of reason that are equally obligatory wherever man is to be found. There is an obvious distinction, between those particulars in each instance which constitute the permanent nature of the case before us, and those interpositions of a peremptory authority, to which it may be prudent to submit, but which cannot alter our ideas of the conduct to which independent man ought to adhere. What then are the consequences tliat will result from the obedience of compulsion, and not of the understanding?