US to remark, that anarcliyas 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 truth previously dis- seminated among the inhahitants, it would be very far from lead- ing to the abolition of violence. Individuals, freed from the ter- rors by which they had been accustomed to be restrained, and not yet placed under the happier and more rational restraint of pub- lic inspection, or convinced of the wisdom of reciprocal forbear- ance, would break out into acts of injustice, while other indivi- duals, who desired only that this irregularity should cease, would find themselves obliged to associate for its forcible suppression. We should have all the evils and compulsory restraint 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 accurately than we have hitherto done, the evils of anarchy. Such a review- may afford us a criterion by which to discern, as well the com- parative value of different institutions, as the precise degree of coercion which is required for the exclusion of universal violence and tumult.
Anarchy, in its own nature, is an evil of short duration. The more horrible are the mischiefs it inflicts, the more does it hasten to a close. But it is nevertheless necessary that we should con- sider, 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, mul- titudes 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 liim 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. In such a state w^e must bid farewell, 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 coruscations of the meteor, not like the mild and equable illumination of the sun.
Men, who start forth into sudden energy, will resemble in temper the state that brought them to tliis unlooked for greatness. They will be rigorous, unfeeling and fierce; and their ungoverned pas- sions will often not stop at equality, but incite them to grasp at power.
. Wiih all these evils, we must not hastily conclude, that tlie mischiefs of anarchy are worse than those which government is qualified to produce. With respect to personal security, anarchy is perhaps a condition more deplorable than despotism; but then AS A TEMPORARY EXPEDIENT. 177 it is to be considered, tliat despotism is as perennial, as anarchy is transitory. Despotism, as it existed under the Roman em- perors, 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 in- trigue, a tool to the rage of courtiers and the resentment of ■women. He that dared utter a word against the tyrant, or en- deavour 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 to its spirit and history will probably 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 despotism are strongly contrasted with each other. Anarchy awakens thought, and diffuses energy and enterprise 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 pro- mises greatness is destined tof all under the exterminating hand of suspicion and envy. In despotism, there is no encovu-agement to excellence. Mind delights to expatiate in a field where every species of distinction 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 pursue its career. The inhabitants of countries in which despotism is complete, are frequently but a moi-e vicious species of brutes. Oppression stimulates ihem 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, is that of the result 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 a variety of evils. It may lead to a modification of despotism, a milder and more equitable government than that wliich had gone before. It cannot immediately lead to the best form of society, since it necessarily leaves mankind in a state of ferment, which 27.— VOL. II. N I 78 OP PUNISHMENT CONSIDERED requires a strong hand to control, and a slow and wary process to tranquillise..,j.]
The scene in which anarchy shall terminate, principally de-*;- pends upon the state of mind by which it has been preceded. All mankind were in a state of anarchy, that is, without govern- ment, 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, as it has sometime* been represented.
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, reflection 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 revolution is a species of anarchy) promise a more auspicious ultimate result, 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. False- hood may gain by precipitating the crisis; but a genuine and en- lightened philanthropy will wait, with unaltered patience, for the harvest of instruction. The arrival of that harvest may be slow^ but it is perhaps infallible. If vigilance and wisdom be successful in their present opposition to anarchy, every benefit may ulti- mately be expected, untarnished with violence, and unstained with blood.
These observations are calculated to lead us to an accurate estimate of the mischiefs of anarchy, and, of consequence, to show the importance we are bound to attach to the exclusion of it. Government is frequently a source of peculiar evils; but an enlarged view will teach us to endure those evils, which experience seems to evince are inseparable from the final benefit of man- kind. From the savage state to the highest degree of civilisation, the passage is long and arduous; and, if we aspire to the final result, we must submit to that portion of misery and vice which necessarily fills the space between. If we would free ourselves from these inconveniences, unless our attempt be both skilful and cautious, we shall be in danger, by our impatience, of producing worse evils than those we would escape. Now it is the first principle of morality and justice that directs us, where one of two evils is inevitable, to 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.
AS A TEMPORARY EXPEDIEKT. 179' If then constraint, as the antagonist of constraint, must, in cer- tain cases, and under temporary circumstances, be admitted, it is an interesting enquiry, to ascertain which of the three ends of punishment, already enumerated, must he selected by the indi- viduals by whom punishment is employed. And here it will be sufficient, very briefly to recollect the reasonings that have been stated under each of these heads.
It cannot be reformation. Reformation is improvement; and nothing can take place in a man worthy the name of improve- ment, otherwise than by an appeal to the unbiassed judgment of his mind, and the essential feelings of his nature. If I would improve a man's character, who is there that knows not, that the only effectual mode is, by removing all extrinsic influences and incitements, by inducing him to observe, to reason and enquire, by leading him to the forming a series of sentiments that are truly his own, and not slavishly modelled upon the sentiments of another?
To conceive that compulsion and punishment are the proper means of reformation, is the sentiment of a barbarian; civiliza- tion and science are calculated to explode so ferocious an idea. It was once universally admitted and approved; it is now neces- sarily upon the decline.
Punishment must either ultimately succeed in imposing the sentiments it is employed to inculcate upon the mind of the sufferer; or it must forcibly alienate him against them.
The last of these can never be the intention of its employer, or have a tendency to justify its application. If it were so, punish- ment ought to follow upon deviations from vice, not deviations from virtue. Yet to alienate the mind of the sufferer from the individul that punishes, and from the sentiments he entertains, is perhaps the most common eff'ect of punishment.
Let us suppose, however, that its effect is of an opposite nature; that it produces obedience, and even a change of opinion. What sort of a being does it leave the man thus reformed? His opinions are not changed upon evidence. His conversion is the result of fear. Servility has operated that within him, which liberal en- quiry and instruction were not able to do.
Punishment undoubtedly may change a man's behaviour. It may render his external conduct beneficial from injurious, though it is no very promising expedient for tliat purpose. Biit it cannot improve his sentiments, or lead him to the form of right proceed- ing but by the basest and most despicable motives. It leaves hira a slave, devoted to an exclusive self-interest, and actuated by fear, the meanest of the selfish passions.
But it may be said, "however strong may be the reasons I am able to communicate to a man in order to his reformation, he may be restless and impatient of expostulation, and of conse- quence render it necessary that I should retain him by force, till 1 can properly instil these reasons into his mind." It must be re- membered that the idea here is not that of precaution, to pre- N 2 180 OF PUNISHMENT CONSIDERED.
vent tlie mischiefs he might perpetrate, for that belongs to an- other of the three ends of punishment, that of restraint. But, separately from this idea, the argument is peculiarly weak. If the reasons I have to communicate be of an energetic and impressiA'e 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 to communicate them, and not to betray the cause of justice by an ill-timed impatience. This jjTudence I should infallibly exercise, if my object were to obtain eomething interesting to myself; why should I be less quick- sighted when I purpose the benefit of another? 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 argu- ments prove, not that we should lose sight of reformation, if punishment for any other reason appear to be necessary; but that reformation cannot reasonably be made the object of punish' ment.
Punishment for the sake of example, is a theory that can never be justly maintained. The sufiering proposed to be inflicted, considered absolutely, is either right or wrong. If it be right, it should be inflicted for its intrinsic recommendations. If it be wrong, what sort of example does it display? To do a thing 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 tlie subject of war,* employed to prove the propriety of my doing a thing otherwise Avrong, 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 practices them. A better effect will be produced in human society by my conscien- tious adherence to them, than by my anxiety to create a specific expectation respecting my future conduct. This argument will be still further enforced, if we recollect what has already been said, respecting the inexhaustible difierences of different cases, and the impossibility of reducing them to general rules.f The third object of punishment accordmg to the enumeration already made, is restraint. If punishment 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 j: the amount of the necessity tending to supersede these objections, has also been considered.
The subject of this chapter is of great importance, in propor- tion to the length of time that may possibly elapse, before any considerable part of mankind shall be persuaded, to exchange * Book v., Chap. XVI., p. 7J. i Chap. IV. t Chap. HI.
SCALE OF PUNISHMENT. 181 the present complexity of political institution, for a mode which promises to supersede the necessity of punishment. It is highly unworthy of the cause of truth, to suppose that, during this in- terval, 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 temporaiy obligation that arises out of this circumstance, exactly corresponds with what was for- merly 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 enlisted in an array of cowards, it might be my duty to retreat, though, absolutely con- sidered, it should have been the duty of the army to come to blows. Under every possible circumstance, it is my duty to ad- vance the general good, by the best means which the circum- stances under which I am placed will admit.
CHAP. VI.
SCALE OF PUXISHMENT.
Its sphere described. — Its several classes. — Death witn torture. — Death absolutely. — Origin of this policy — in the corruptness of political institutions — in the inhumanity of the institutds. — Coryora I punish' ment. — Its absurdity. — Its atrociousness. — Privation (^'freedom. — Duty of reforming our neighbour aii inferior consideration in this case. — Its place desci'ibed. — Modes of restraint. — Indiscriminate im- prisonment,— Solitary imprisonment. — Its severity. — Its moral effects. — Slavery. — Banishment. — 1. Simple banishment. — 2. Transporta- tion.— 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 pmiishment which has now been delivered; nor can any thing be of greater importance than these inferences will be found, to the virtue, the happiness and improvement of mankind.
And, first, it evidently follows that punishment 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 the keeper of the coxxrse contributes to the fleetness of the race. Nothing can be more unjust, than to have recourse to it, • Vol. I., Book U., Chap IV.
182 SCALE OF PUNISHMENT.
but upon the most unquestionable emergency. Instead of mul- tiplying 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 which can, in auA- case, be admitted as its apology, and that is, where the allowing the offender to be at large shall be notoriously hazardous to public security.
Secondly, the consideration of restraint, as the only justifiable ground of punishment, will furnish us with a simple and satisfac- tory criterion by which to measure the justice of the suffering inflicted.
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 the desire to exhibit a terrible example on the other.
To deprive an offender of his life in any manner, will appear to be unjust, as it seems always sufficiently practicable, without this, to prevent him from further 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 laAvs of Europe doom to destruction, we sometimes meet with persons who, subsequently to their offence, have succeeded to a plentiful inhe- ritance, or who, for some other reason, appear 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 those who conduct the afi'airs 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 Avith how much reluctance they had been induced to employ the force of the society against him, if they represented the true state of the case with calmness, perspicuity, and benevolence, to his mind, if 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, Avith the certainty of being obliged, by a sIoav and patient process, to amputate their errors. It is the uncertainty of punishment under the existing forms, SCALE OF PUNISHMENT. 133 Ihat 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 considerable pain.
The true reasons, in consequence of which these forlorn and deserted members of the community are brought to an ignomini- ous 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, and the punishment of death almost unknown. On the other hand, the more there is in any country of inequality and oppression, the more punishments are multiplied. The more the institutions of society contradict the genuine sen- timents 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, disdaming 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, might have been found as accomplished and sus- ceptible as they, if he had only changed situations. When we behold a company of poor wretches brought out for execution, reflection will present to our affrighted fancy all the hopes and possibilities which are thus brutally extinguished; the genius, tlie daring invention, the unshrinking firmness, the tender cha- rities 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 appellation of corporal punishment, is also proscribed by the system above •established. Corporal punishment, unless so far as it is intended for example, appears, in one respect, in a very ludicrous point of vie -v. 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. In another view, it is difficult to express the abhorrence it ought to create. The genuine propen- sity of man is to venerate mind in 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 up under the genial influence of instruction, the wisdom that is generated through the medium of unrestricted communication? How com- pletely do violence and corporal infliction reverse the scene? From this moment, all the wholesome avenues of mind are closed, and, on every side, we see them guarded with a train of disgraceful passions, hatred, revenge, despotism, cruelty, hypo- crisy, conspiracy and cowardice. Man becomes the enemy of 184 SCALE OP PUNISHMENT.
man; tlic stronger are seized with the hist of unbridled domina- tion, and the weaker shrink, with hopeless disgust, from the approach of a fellow. With w^hat feelings must an enlightened observer contemplate the furrow of a lash imprinted upon the body of a man? What heart beats not in unison with the sub- lime law of antiquity, " Thou shalt not inflict stripes upon the body of a Roman?" There is but one alternative in this case, on the part of the sufferer. 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 of his own under- standing;) he will be governed by something that is not reason, and ashamed of something that is not disgrace; or else every pang he endures Mill excite tJie honest indignation of his heart, and fix the clear disapprobation of his intellect, will produce contempt and alienation against his punisher.
The justice of punishment is built upon this simple principle: Every man is bound to employ such means as shall suggest them- selves, for preventing evils subversive of general security, it being first ascertained, either by experience or reasoning, that all milder methods are inadequate to the exigency of the case. The conclusion from this principle is, that we are bound, under certain urgent circumstances, to deprive the olfender of the liberty he has abused. Further than this perhaps no circum- stance 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 further evil, when his power to injure is removed, is the wild and unauthorised dictate of vengeance and rage, the wanton sport of unquestioned superiority.