No principle of moral science can be more obvious and funda- mental, than that the motive by which we are induced to an action, constitutes an essential part of its character. This idea has per- haps sometimes been carried too far. A good motive is of little value, when it is not joined to a salutary exertion. But, without a good motive, the most extensively useful action that ever was per- formed, can contribute little to the improvement or honour of him that performs it. We owe him no respect, if he has been induced to perform it by ideas of personal advantage, or the influence of a bribe. It is, in some respects, worse if the motive that governed him were the sentiment of fear. If we hold in any estimation the attributes of man, if we desire the improvement of our species, we ought particularly to desire tliat they should be led in the path of usefulness by generous and liberal considerations, that Lheir obedience should be the obedience of the heart, and not that of a slave.
Nothing can be of higher importance to the improvement of the human mind, than that, whatever be the conduct we may be compelled to pursue, we should have distinct and accurate notions of the merits of every moral question in which we may be con- cerned. In all doubtful questions, there are but two criterions possible, the decisions of other men's wisdom, and the decisions of our own imderstanding. Which of these is conformable to the nature of man? Can we surrender our own understanding? However we may sU-ain after imi)licit faith, will not conscience in spite of ourselves whisper us, " This decree is equitable, and this is founded in mistake?" Will there not be in the minds of 160 GENERAL DISADVANTAGES OF PUNISHMENT.
the votaries of superstition, a perpetual dissatisfaction, a desire to "believe what is dictated to them, accompanied with a want of that in which belief consists, evidence and conviction? If we could surrender our understanding, what sort of beings should we "become?
The direct tendency of coercion is to set our understanding and our fears, our duty and our weakness, at variance with each other. Coercion first annihilates the understanding of the subject upon whom it is exercised, and then of him who employs it. Dressed in the supine prerogatives of a master, he is excused from culti- vating the faculties of a man. What would not man have been, long before this, if the proudest of us had no hopes but in argu- 2nent, if he knew of no resort beyond, if he were obliged to sharpen his faculties, and collect his powers, as the only means of effecting his purposes?
Let us reflect a little upon the species of influence, that coer- cion employs. It avers to its victim that he must necessarily be in the wrong, because I am more vigorous or more cunning than he. Will vigour and cunning be always on the side of truth? It appeals to force, and represents superior strength as the stand- ard of justice. Every such exertion implies in its nature a species of contest. The contest is often decided before it is brought to open trial, by the despair of one of the parties. The ardour and paroxysm of passion being over, the offender surrenders himself into the hands of his superiors, and calmly awaits the declaration of their pleasure. But it is not always so. The de- predator that by main force surmounts the strength of his pur- suers, or by stratagem and ingenuity escapes their toils, so far as this argument is valid, proves the justice of his cause. Who can refrain from indignation, when he sees justice thus miserably prostituted? Who does not feel, the moment tlie contest begins, the full extent of the absurdity that the appeal includes? The ma- gistracy, the representatives of the social system, that declares war against one of its members, in behalf of justice, or in behalf of oppression, appears almost equally, in both cases, entitled to our censure. In the first case, we see tiiith throwing aside her native arms and her intrinsic advantage, and putting herself upon a level with falsehood. In the second, we see falsehood confident in the casual advantage she possesses, artfully extinguishing the new- born light that would shame her in the midst of her usurped authority. The exhibition in both, is tliat of an infant crushed in the merciless grasp of a giant.
No sophistry can be more gross, than that which pretends to bring the parties to an impartial hearing. Obsene the consis- tency of this reasoning! We first vindicate political coercion, because the criminal has committed an offence against the com- munity 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 OF THE PURPOSES OF PUNISHMENT. 161 the judge. How long shall such inconsistencies impose on man- kind? The pursuit commenced against the supposed offender, is the j^osse comifatus, the armed force of the whole, drawn out in such portions as may be judged necessary; and, when seven mil- lions of men have got one poor, unassisted individual in their power, they are then at leisure to torture or to kill him, and to make his agonies a spectacle to glut their ferocity. » The argument against political coercion is equally strong, against the infliction of private penalties, between master and slave, and between parent and child. There was, in reality, not only more of gallantry, but more of reason in the Gothic system of trial by duel, than in these. The trial of force is over in these, as we have already said, before the exertion offeree has begun. Ail that remains, is the leisurely infliction of torture, my power to inflict it being placed in my joints and my sinews. This whole argimient seems liable to an irresistible dilemma. The right of the parent over his offspring, lies either in his superior strength, or his superior reason. If in his strength, we have only to apply this right.universally, in order to drive all morality out of the world. If in his reason, in that reason let him confide. It is a poor argument of my superior reason, that I am unable to make justice be apprehended and felt, in the most necessary cases, without the intervention of blows.
Let us consider the effect that coercion produces upon the mind of him against whom it is employed. It cannot begin with convincing; it is no argument. It begins with producing the sensation of pain, and the sentiment of distaste. It begins with violently alienating the mind from the truth with which we wish it to be impressed. It includes in it a tacit confession of imbe- cility. 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 strong; but he really punishes •me because his argument is weak.
CHAP. HI.
OF THE PURPOSES OF rUNISIIMENT.
Nature of defence considered. — Punishment for restraint— far refor- mation.— Supposed uses of adversity — defective — unnecessary. — ■ Punishment for example— 1, nugatory.— 2, unjust. — Unfeeling cha' racier of this species of coercion.
Let us proceed to consider the three principal ends that punish- ment proposes to itself, restraint, reformation, and example. Under each of these heads the arguments on the affirmative side 26.— VOL. II. M 162 OF THE PURPOSES OP PUKISHMENT, must be allowed to be cogent, not irresistible. Under each of them considerations will occur, that will oblige us to doubt miiversally of the propriety of punishment.
The first and most innocent of all the classes of coercion, is that which is employed in repelling actual force. This has but little to do with any species of political institution, but may never- theless deserve to be first considered. In this case I am employed (suppose, for example, a draxNTi sword is pointed at my own breast or that of another, wilh threats of instant destruction) ia preventing a mischief that seems about inevitably to ensue. In this case there appears to be no time for experiments. And yet, even here, a strict research will suggest to us important doubts. The powers of reason and truth are yet unfathomed. That truth "which one man cannot comm\micate 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 the grandeur of the idea con- ceived in his own mind, made its way with irresistible force to the mind of his executioner. He had no arms for resistance; he had no vengeance to threaten; he was debilitated and deserted; it was by the force of sentiment only, that he disarmed his destroyer. If there were falsehood and prejudice mixed with the idea com- municated, in this case, can we believe that truth is not still more powerful? It would be well for the human species, if they were all, in this respect, like Marius, all accustomed to place an in- trepid confidence in the single energy of intellect. Who shall say what there is that would be impossible to men thus bold, and actuated only by the purest sentiments? Who shall say how far tlie whole species might be improved, did they cease to respect force in others, and did they refuse to employ it for themselves.
The difference however, between this species of coercion, and the species which usually bears the denomination of punishment, is obvious. Punishment is employed agauist an individual whose violence is over. He is, at present, engaged in no hostility, against the community, or any of its members. He is quietly pursuing, it may be, those occupations Avhich 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 in- jury which it is to be feared he will commit." This is the very argument which has been employed to justify the most execrable tyrannies. By what reasonings have the inquisition, the employ- ment of spies, and the various kinds of public censure directed against opinion, been vindicated? By recollecting that there is an intimate connection between men's opinions and their con- duct; that immoral sentiments lead, by a very probable conse- quence, to immoral actions. There is not more reason, in many OF THE PURPOSES OF PUKISHMJiKT. 163 cases at least, to apprehend that the man who has once committed robbery, will commit it again, than the man who has dissipated his property at the gaming-table, or who is accustomed to profess that, upon any emergency, he will not scruple to have recourse to this expedient. Nothing can be more obvious than that, what- ever precautions may be allowable with respect to the future, jus- tice will reluctantly class among these precautions a viojence to be committed on my neighbour. Nor is it oftener unjust, than it is superfluous. Why not arm myself with vigilance and energy, instead of locking up every man whom m}'^ imagination may bid me fear, that I may spend my days in undisturbed in- activity? If communities, instead of aspiring, as they have hitherto done, to embrace a vast territory, and glut their vanity with ideas of empire, were contented u itli 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 imder this head is, that all punishment for the sake of restraint, is punishment upon suspicion, a species of punishment, the most abhorrent to reason, and arbitrary in its application, tliat can be devised.
The second object which punishment may be imagined to pro- pose to itself, is reformation. We have already seen various objections that may be offered to it in this point of view. Coer- cion cannot convince, cannot conciliate, but on the contrary alienates the mind of him against whom it is employed. Coer- cion has nothing in common with reason, and therefore can have no proper tendency to the cultivation of virtue. It is true that reason is nothing more than a collation and comparison of various emotions and feelings; but they must be the feelings originally appropriate to the question, not those which an arbitrai-y Avill, stimulated by the possession of power, may annex to it. Reason is omnipotent: if my conduct be wrong, a very simple statement, flowing from a clear and comprehensive view, will make it appear to be such; nor is it probable that there is any perverseness that would persist in vice, in the face of all the recommendations with which virtue might be invested, and all the beauty in which it might be displayed.
But to this it may be answered, " that this view of the subject may indeed be abstractedly true, but that it is not true relative to the present imperfection of human faculties. The grand requisite for the reformation and improvement of the human species, seems to consist in the rousing of the mind. It is for this reason that the school of adversity, has so often been considered as the school of virtue.* In an even coiuse of easy and prosperous circum- stances, the faculties sleep. But, when great and m'gcnt occasion m2 164 OF THE PURPOSES OF PUNISHMENT.
is presented, it sliould seem that tlie mind rises to the level of the occasion. Difficulties awaken vigour, and engender strength; and it will frequently happen that, the more you check and oppress me, the more will my faculties swell, till they burst all the obstacles of oppression."
The opinion of the excellence of adversity, is built upon a very obvious mistake. If we will divest ourselves of paradox and singularity, we shall perceive that adversity is a bad thing, but that there is something else that is worse. Mind can neither exist, nor be improved, without the reception of ideas. It will improve more in a calamitous, than a torpid state. A man will sometimes be found wiser at the end of his career, who has been treated with severity, than with neglect. But, because severity is one way of generating thought, it does not follow that it is the best.
It has already been shown that coercion, absolutely considered, is injustice. Can injustice be the best mode of disseminating principles of equity and reason? Oppression, exercised to a cer- tain 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 j'ears? Is it probable, that that which has been thus terrible in its consequences, should, under any variation of circumstances, be made a source of eminent good? All coer- cion sours the mind. He that suffers it, is practically persuaded of the want of a philanthropy sufficiently enlarged, in those with whom he has intercourse. He feels that justice prevails only with gi-eat limitations, and that he cannot depend upon being treated with justice. The lesson which coercion reads to him is, " Sub- mit to force, and abjure reason. Be not directed by the convic- tions of yoiir understanding, but by the basest part of your nature, the fear of personal pain, and a compulsory awe of the injustice of others." It was thus Elizabeth of England and Frederic of Prussia were educated in the school of adversity. The way in which they profited by this discipline, was by finding resources in their own minds, enabling them to regard, with an unconquered spirit, the violence employed against them. Can this be the best mode of forming men to virtue? If it be, per- haps it is further requisite, that the coercion we use should be flagrantly unjust, since the improvement seems to lie, not in sub- mission, but resistance.
1 But it is certain that truth is adequate to excite the mind, witliout the aid of adversity. By truth is here understood a just view of all the attractions of industry, knowledge, and benevo- lence. If I apprehend the value of any pursuit, shall I not engage in it? If I apprehend it clearly, shall I not engage in it zealously? If you would awaken my mind in the most effectual manner, speak to the genuine and honourable feelings of my nature. For that purpose, thoroughly understand yourself that which you would recommend to me, impregnate your mind with its evidence, and speak from the clearness of your view, and the fulness of OF THE PURPOSES OF PUNISHMENT. 165 conviction. Were we accustomed to an education, in which truth was never neglected from indolence, or told in a way treacherous to its excellence, in which the preceptor subjected himself to the perpetual discipline of finding the way to communicate it with brevity and force, but without prejudice and acrimony, it cannot be believed, but that such an education woidd be more effectual for the improvement of the mind, than all the modes of angi-y or benevolent coercion that ever Avere devised.
The last object which punishment proposes, is example. Had legislators confined their views to reformation and restraint, their exertions of power, though mistaken, would still have borne the stamp of himianity. But, the moment vengeance presented itself as a stimulus on the one side, or the exhibition of a terrible ex- ample on the other, no barbarity was thought too great. Ingenious cruelty was busied to find new means of torturing the victim, or of rendering the spectacle impressive and horrible.
It has long since been observed, that this system of policy con- stantly fails of its purjjose. Further refinements in barbarity, produce a certain impression, so long as they are new; but this impression soon vanishes, and the whole scope of a gloomy in- vention is exhausted in vain*. The reason of this phenomenon, is that, whatever may be the force with which novelty strikes the imagination, the inherent nature of the situation speedily recurs, and asserts its indestructible empire. We feel the emergencies to which we are exposed, and we feel, or think we feel, the dic- tates of reason inciting us to their relief. • Whatever ideas we form in opposition to the mandates of law, we draw, with sincerity, tliough it may be with some mixture of mistake, from the essen- tial 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 pos- sesses none of the attributes of persuasion. It may terrify; but it cannot produce in us candour and docility. Thus ulcerated "With injustice, our distresses, our temptations, and all the eloquence of feeling present themselves again and again. Is it any wonder they should prove victorious?
Punishment for example, is liable to all the objections which are urged against punishment for restraint or reformation, and to certain other objections peculiar to itself. It is employed against a person not now in the commission of offence, and of whom we can only suspect that he ever will offend. It supersedes argu- ment, reason, and conviction, and requires us to think such a spe- cies of conduct our duty, because such is the good pleasure of our superiors, and because, as we are taught by the example in question, they will make us rue our stubbornness if we think otherwise. In addition to this it is to be remembered that, when * BeccariOt Dei Delitti e delle Pent.
166 OF THE APPLICATION OP PUNISHMENT.
I am made to suffer as an example to others, I am myself treated ■with supercilious neglect, as if I were totally incapable of feeling and morality. If yon inflict pain upon me, you are eitlier just or unjust. If you be just, it should seem necessary that there should be something in me that makes mc the fit subject of pain, either absolute desert, which is absurd, or mischief I may be expected to perpetrate, or lastly, a tendency in what you do, to produce my reformation. If any of these be the reason Avhy the suffering I undergo is just, then example is out of the question; it may be an incidental consequence of the procedure, but it forms no part of its principle. It must surely be a very inartificial and injudi- cious 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 reasoning of the following chapter.
CHAP. IV.
or THE ArPLICATION OF PUNISHMENT.
Delinquency and pu7iishment incommensurable. — External actum no proper subject of criminal animadversion — how far capable of proof — Iniquity of this standard in a moral — and in a political view. — Pro- priety of a retribution to be measured by the intention of the offender considered. — Such a project would overturn criminal law — would abolish punishment. — Inscrutability, 1, of motives. — Doubtfulness of histm'y. — Declarations of sifferers. — 2, of the future conduct of the offender. — Uncertainty of evidence — either of the facts — or the inten- tion,— Disadvantages of the defendant in a criminal suit.
A FURTHER consideration, calculated to show, not only the ab- surdity of punishment for example, but the iniquity of punish- ment in general, is, that delinquency and punishment are, in all cases, incoinraensurable. No standard of delinquency ever has been, or ever can be, discovered. No two crimes were ever alike; and therefore the reducing them, explicitly or implicitly^ to general classes, which the very idea of example implies, is ab- surd. Nor is it less absurd to attempt to proportion the degree of suffering to the degree of delinquency, when the latter can never be discovered. Let us endeavour to clear the truth of these propositions.
Man, like every other machine the operations of which can be OP THE APPLICATION OF PUNISHMENT. 167 made ihe object of our senses, may, in a certain sense, be affirmed to consist of two parts, the external and the internal. The form ■which his actions assume is one thing; the principle from which they flow is another. With the former it is possible we should be acquainted; respecting the latter there is no species of evidence that can adequately inform us. Shall we proportion the degree of suffering to the former or the latter, to the injury sus- tained by the community, or to the quantity of ill intention con- ceived by the offender? Some philosophers, sensible of the inscrutability of intention, have declared in favour of our attend- ing to nothing but the injury sustained. The humane and bene- volent Beccaria has treated this as a truth of the utmost import- ance, " unfortunately neglected by the majority of political insti- tutors, and preserved only in the dispassionate speculation of philosophers."* It is true that we may, in many instances, be tolerably informed, respecting external actions, and that there will, at first sight, ap- pear to be no great difficulty in reducing them to general rules. Murder, according to this system, suppose, will be the exertion of any species of action affecting my neighbour, so as that the consequences terminate in death. The difficulties of the magis- trate are much abridged upon this principle, though they are by no means annihilated. It is well known how many subtle dis- quisitions, ludicrous or tragical according to the temper with "which we view them, have been introduced to determine in each, particular instance, whether the action were or were not the real occasion of the death. It never can be demonstratively ascertained.
But dismissing this difficulty, how complicated is the iniquity of treating all instances alike, in which one man has occasi<med 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 endea- vouring to save the life of a dro'\\Tiing fellow creature, oversets a boat, and occasions tlie death of a second, the same suffering, as on him who, from gloomy and vicious habits, is incited to the murder of his benefactor? In reality, the injury sustained by the community, is, by no means, tlie same in these two cases; the injury sustained by the community, is to be measured by the antisocial dispositions of the offender, and, if that were the right view of the subject, by the encouragement aff'orded to similar dis- positions from his impunity. But this leads us at once, from the external action, to the unlimited consideration of the intention of • " Questa e una di quelle palpabili rerita, cJie per una maravigliota comhinazione di circostanze non sono con decisa sicurezza conosciute, che^ da alcuni pochi pensatori uomini d' ogni nazione, e d'ogni secolo"—Dti Delitti € delle Fene,