168 OF THE APPLICATION OF PUNISIIMENr.
the actor. The iniquity of the ^^•rittcn la'vvs of society, is of prO' cisely tlie same nature, though not of so atrocious a degree, in the confusion they actually introduce between various intentions, as if this confusion were unlimited. One man shall commit murder, to remove a troublesome observer of his depraved dis- positions, -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 pregiiant with extensive mischief, and perceives no other mode by which its perpetration can be pre- vented. A fifth, in defence of his father's life or his daughter's chastity. Each of these men except perhaps the last, may act, either from momentary impulse, or from any of the infinite shades and degrees of deliberation. Would you award one individual punishment to all these varieties of action? Can a system that levels these inequalities, and confounds these differences, be pro- ductive 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 pretences introduced, calculated in the most powerful manner, to produce general injury? Can there be a more flagrant injury, than to inscribe, as we do in effect, upon our courts of 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 difterent mag- nitudes, are confounded together, by the insolent supineness of the legislator, and the unfeeling selfishness of those who have engrossed the produce of the general labour to their particular emolument!"
But suppose, secondly, that we were to take the intention of the offender, and the future injury to be apprehended, as the standard of infliction. This would no doubt be a considerable improvement. This would be the true mode of reconciling pun- ishment and justice, if, for reasons already assigned, they were not, in their own nature, incompatible. It is earnestly to be de- sired that this mode of administering retribution should be serious- ly 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 liave hitherto done, with a sovereign contempt of equity and reason. This attempt would lead, by a very obvious process, to the abolition of all punishment.
It would immediately lead to the abolition of all criminal law. An enlightened and reasonable judicature would have recourse, in order to decide upon the cause before them, to no code but the code of reason. They would feel the absurdity of other men's teaching them what they should think, and pretending to under- stand the case before it happened, better than they who had all the circumstances under their inspection. They would feel the absurdity of bringing every offence to be compared with a certaia OF THE APPLICATION OF PUNISHMENT. 169 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* The great advantage that •would result from men's determining to govern themselves, in the suffering to be inflicted, by the motives of the offender, and the future injury to be apprehended, would consist, in their being taught how vain and presumptuous it is in them to attempt to wield the rod of retribution. Who is it that, in his sober reason, will pretend to assign the motives tliat influenced me in any article of my conduct, and upon them to found a grave, perhaps a capital, penalty against me? The attempt would be iniquitous and absurd, even though the indi- vidual 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 him- self in the motives of his conduct, and assign to one principle, what, in reality, proceeded from another? Can we expect that a mere spectator should form a judgment sufficiently correct, when he who has all the sources of information in his hands, is never- theless mistaken? Is it not to this hour a dispute among philoso- ])hers, whether I be capable of doing good to my neighbour for his own sake? " To ascertain the intention of a man, it is ne- cessary, to be precisely informed, of the actual impression of the objects upon his senses, and of the previous disposition of his mind, both of Avhich 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. f Meanwhile the individuals, whose office it is to judge of this insci-utable mystery, are possessed of no previous knowledge, utter strangers to the person accused, and collecting their only materials from the information of two or three ignorant and prejudiced witnesses.
What a vast train of actual and possible motives enter into the history of a man, who has been incited to destroy the life of an- other? Can you tell how much in these there was of apprehended justice, and how much of inordinate selfishness? how much of sud- den passion, and how mr.ch of rooted depravity? how much of intolerable provocation, and how much of spontaneous -wTong? how much of that sudden insanity; which hurries the mind into a certain action, by a sort of incontinence of nature, almost without any as- signable motive, and how much of incurable habits? 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 bene- • Chap. VIII, *" t " Questa [l'intenxio7ic'] dipende dalla impressione attuale degli oggetti, et dalla precedente disposizione della viente: esserariano in tutti gli vomini^ e in ciascum uonio colla relocissima successione dMe idee, delle passoni, e delle circostanze." He adds, " Sarebbe dunquenecessarioformarcnon solo un codice particolare per ciasciin cittadino, ma una nuovo legge ad ogni" delittor—Dei Delitti c ddle Fene, 170 QF THE APPLICATION OF PUKISHMENT.
volence, whether Voltaire were the stain of his species, or their most generous and intrepid benefactor? Upon these subjects moderate men perpetually quote the impenctrableness 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? This part of the subject will be put in a striking light, if we recollect the narratives that liave been pub- lished by Condemned criminals. In how different a light do they place the transactions that proved fatal to them, from the con- struction that was put upon them by their judges? And yet these narratives were written under the most awful circumstances, and many of them without the least hope of mitigating their fate, and with marks of the deepest sincerity. Who will say that the judge, with his slender pittance of information, was more competent to decide upon the motives, than the prisoner after the severest scrutiny of his own mind? How few are the trials which an humane and just man can read, terminating in a verdict of guilty, without feeling an 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, against which every enlightened spectator exclaims with horror.
But this is not all. The motive, when ascertained, is a subor- dinate 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 rea- sonably 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 Iiis repeating his offence, or being imitated by others. Was this an habitual state of his mind, or Avas it a crisis in his history likely to remain an unique? What efiect has experience produced on him; or what likelihood is there, that the uneasiness and sufiering that attend the perpetration of eminent wrong, may have worked a salutary change in his mind? Will he hereafter be placed in circum- stances that shall impel him to the same enormity? Precaution is in its own nature, a step in a high degree precarious. Precaution that consists in inflicting injury on another, will at all times be odious to an equitable mind. INIeanwhile, be it observed, that all which has been said upon the uncertainty of crime, tends to aggra- vate the injustice of punishment for the sake of example. Since the crime upon which I animadvert in one man, can never be the same as the crime of another, it is as if I should award a grievous penalty against persons with one eye, to prevent any man in future from putting out his eyes by design.
One more argument, calculated to prove the absurdity of the OF THE APPLICATION OF PUNISHMENT. 171 attempt to proportion delinquency and suffering to each other, may be derived from the imperfection of evidence. The veracity of witnesses will, to an impartial spectator, be a subject of con- tinual doubt. Their competence, so far as relates to just obser- vation 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 e\idence. 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 circums; aices, and unexpectedly charged with mur- der, I falter in my speech, or betray perturbation in ray counte- nance, this is an additional proof. Who docs not know, that there is not a man in England, however blameless a life he may lead, who is secure that he shall not end it at the gallows? This is one of the most obvious and universal blessings that civil government has to bestow. In what is called direct evidence, it is necessary to identify the person of the offender. How many instances are there upon record, of persons condemned upon this evidence, who, after their death, have been proved entirely inno- cent? Sir Walter Raleigh, when a prisoner in the Tower, heard some high words accompanied with blows under his window. He enquired of several eye-witnesses, who entered his apartment in succession, into the nature of the transaction. But the story they told, varied in such material circumstances, that he could form no just idea of what had been done. He applied this to prove the uncertainty of history. The parallel would have been more striking, if he had applied it to criminal pursuits.
But, supposing the external action, the first part of the question to be ascertained, we have next to discover through the same garbled and confused medium the intention. How few men should I choose to intrust with the drawing up a narrative of some delicate and interesting transaction of my life? How few, though, corporally speaking, they were witnesses of what was done, would justly describe my motives, and properly report and interpret my words? Yet, in an affair, that involves my life, my fame and future usefulness, I am obliged to trust to any vxdgar and casual observer.
A man properly confident in the force of truth, would consider a public libel upon his character as a trivial misfortune. But a criminal trial in a court of justice, is inexpressibly diflFerent. Few men, thus circumstanced, can retain the necessary presence of mind, and freedom from embarrassment. But if they do, it is with a cold and unwilling ear that their tale is heard. If the crime charged against them be atrocious, they are half condemned in the passions of mankind, before their cause is brought to a trial. All that is interesting to them, is decided amidst the first burst of indignation; and it is well, if their story be impartially estimated.
172 OF PUNISHMENT CONSIDERED ten years after their body has mouldered in the f;:rave. 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 mas.cr, if he do not beat his slave in the moment of resentment, often feels a repugnance to the beating him at all. Not so much, perhaps, as is commonly sup- posed, from forgetfulness of the offence, as that the sentiments of reason have time to recur, and he feels, in a confused and indefinite manner, the injustice of punishment. Thus every consideration tends to show, that a man tried for a crime, is a poor deserted individual, with the whole force of the community conspiring his ruin. The culprit that escapes, hoAvever 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 oft' an imputation imder 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.
CHAP. V.
OF PUNISHMENT CONSIDERED AS A TEMPOrvARY EXPEDIENT.
Arguments in its favour. — Answer. — It cannot Jit men for a better order of society. — The true remedy to private injustice described — is adapted to immediate practice. — Duty of the covimunity in this respect. — Duty of individuals. — Illustration from the case of uar — of indivi' dual defence. — Application. — Disadvantages of anarchy — icant of security — of progressive enquiry. — Correspondent disadvantages of despotism. — Anarchy awakens, despotism depresses the mind. — Final result of anarchy — how determined. — Supposed purposes of punish- ment in a temporary view — reformation — example — restraint. — Con- clusion, Thus much for the general merits of punishment, considered as an instrument to be applied in the government of men. It is time that we should enquire into the apology which may be offer- ed in its behalf, as a temporary expedient. No introduction seemed more proper to this enquiry, than such a review of the subject upon a comprehensive scale; that the reader might be inspired with a' suitable repugnance against so pernicious a sys- tem, and prepared firmly to resist its admission, in all cases, where its necessity cannot be clearly demonstrated.
The arguments in favour of punishment as a temporary expe» dient are obvious. It may be alleged that, " however suitable an entire immunity in this respect may be to the nature of mind absolutely considered, it is impracticable -svith regard to men asr AS A TEMrOHARY EXPEDIENT. 173 -vvc now find tlicm. The liuman species is at present infected with a thousand ^dces, the offspring of established injustice. They are full of factitious appetites and perverse habits: headstrong in evil, inveterate in selfishness, Avithout sympathy and forbearance for the welfare of oOiers. In time they may become accommo- dated to the lessons of reason; but at present they would be found deaf to her mandates, and eager to commit every species of injustice."
One of the remarks that most irresistibly suggest themselves upon this statement is, that punishment has no proper tendency to prepare men for a state in which punishment shall cease. It were idle to expect, that force should begin to do that, which it is the office of tmth to finish, should fit men, by severity and violence, to enter with more favourable auspices into the schools of reason.
But, to omit this gross misrepresentation in behalf of the supposed utility of punishment, it is of importance, in the first place, to observe, that there is a complete and unanswerable remedy to those evils, the cure of which has hitherto been sought in punishment, that is within the reach of every community, whenever they shall be persuaded to adopt it. There is a state of society, the outline of which has been already sketched,* that, by the mere simplicity of its structure, would lead to the exter- mination of offence; a state, in which temptation would be almost imknown, 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 con- sequences that might be expected to spring from an abolition of the craft and mystery of governing; while, on the other hand, the innumerable murders that are daily committed under the sanction of legal forms, are solely to be ascribed to the pernicious notion of an extensive territoiy; to the dreams of glory, empire, and national greatness, which have hitherto proved the bane of the human species, without producing entire benefit and happi- ness to a single individual.
Another observation which this consideration immediately suggests, is, that it is not, as the objection supposed, by any means necessary, that mankind should pass through a state of purification, and be freed from the vicious propensities which ill constituted governments have implanted, before they can be dis- missed from the coercion to which they are at present subjected. Their state would indeed be hopeless, if it were necessary that the cure should be effected, before we were at liberty to discard those practices to which the disease owes its most alarming symptoms. But it is the characteristic of a well-formed society, not only to maintain in its members those virtues with which they are already imbued, but to extirpate their errors, and render them benevolent and just to each other. It frees us from the 174 OF PUNISHMENT CONSIDERED 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 w^ith dis- eases 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 tlie moment in which the abolition ought to be effected.
A further consequence that may be deduced from the princi- ples that have here been delivered, is that a coercion to be em- ployed upon its own members, can, in no case, be the duty of the community. The community is always competent to change its institutions, and thus to extirpate offence in a way infinitely more rational and just tlian that of punishment. If, in this sense, punishment has been deemed necessary as a temporary expedient, the opinion admits of satisfactory refutation. Punishment can at no time, either permanently or provisionally, make part of any political system that is built upon the principles of reason.
But, though, in this sense, punishment cannot be admitted, for so much as a temporary expedient, there is another sense in which it must be so admitted. Coercion, exercised in the name of the state upon its respective members, cannot be the duty of the community; but coercion may be the duty of individuals Avithin the community. The duty of individuals, in their political capacity, is, in the first place, to endeavour to meliorate the state of society in which they exist, and to be indefatigable in detecting its imperfections. But, in the second place, it behoves them to recollect, that their efforts can- not be expected to meet with instant success, that the progress of knowledge has, in all cases, been gradual, and that their obliga- tion to promote the welfare of society during tlie intermediate period, is certainly not less real, than their obligation to promote its future and permanent advantage. Even the future advantage cannot be effectually procured, if we be inattentive to the present security. But, as long as nations shall be so far mistaken, as to endure a complex government, and an extensive territory, coer- cion will be indispensibly necessary to general security. It is therefore the duty of individuals, to take an active share upon cecasion, in so much coercion, and in such pai-ts of the existing system, as shall be sufficient to counteract the growth of universal violence and tumult. It is unworthy of a rational enquirer to say, " These things are necessary, but I am not obliged to take my share in them." If they be necessary, they are necessary for the general welfare; of consequence, are virtuous, and what no just man will refuse to perform. k_ The duty of individuals is, in this respect, similar to the duty AS A TEMPORARY EXPEDIENT. 175 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 aug- menting their dominions. The most innocent and inoffensive conduct on the part of their neighbours, will not, at all times, be a sufficient security against their ambition. They indeed seek to disguise their violence under plausible pretences; but it is well kno\rn that, where no such pretences occur, they are not, on that account, disposed to relinquish the pursuit. Let us ima- gine then a land of freemen invaded by one of these despots. What conduct does it behove them to adopt? We are not yet wise enough, to make the sword drop out of the hands of our oppressors, by the mere force of reason. Were we resolved, like quakers, neither to oppose, nor, where it could be avoided, to submit to them, much bloodshed might perhaps be prevented: but a more lasting evil would result. They would fix garrisons in our country, and torment us with perpetual injustice. Sup- posing it were even granted, that, if the invaded nation should demean itself with unalterable constancy, the invaders would become tired of their fruitless usurpation, it would prove but little. At present we have to do, not with nations of philosophers, but with nations of men whose virtues are alloyed with weakness, fluctuation, and inconstancy. At present it is our duty to con- sult, respecting the procedure which, to such nations, may be attended with the most favourable result. It is therefore proper, that we should choose the least calamitous mode, of obliging the enemy speedily to w ithdraw himself from our territories.
The case of individual defence is of the same nature. It does not appear, that any advantage can result from my forbearancse, adequate to the disadvantages, of suffering my own life, or that of another, a peculiarly valuable member of the community, as it may happen, to become a prey to the first ruffian who inclines to destroy it. Forbearance, in this case, will be the conduct of a singular individual, and its effect may very probably be trifling. Hence it appears, that I ought to arrest the villain in the execu- tion of his designs, though at the expense of a certain degree of coercion.
The case of an offender, who appears to be hardened in guilt, and to trade in the violation of social security, is clearly parallel to these. I ought to take up arms against the despot by whom my country is invaded, because my capacity does not enable me by arguments to prevail on him to desist, and because my country- men 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 per- suade him to desist, or the community to adopt a just political in- stitution, by means of which security might be maintained, con- sistently with the abolition of punishment.
To understand the full extent of this duty, it is incumbent upon •176 OF PUNISHMENT CONSIDERED