When indeed tLe person of tlie offender has been first seized,, there is a further duty incumbent on his punisher, the duty of endeavouring his reform. But this makes no part of the direct consideration. The duty of every man to contribute to the intellectual health of his neighbour, is of general application. Beside which it is proper to recollect, what has been already proved, that coercion of no sort is among the legitimate means of reformation. Restrain the oifender, as long as the safety of the comnnmity prescribes it, for this is just. Restrain him not au ihstant from a simple view to his own improvement, for this is contrary to reason and morality.
Meanwhile, there is one circumstance, by means of which restraint and reformation are closely connected. The person of the off'ender is to be restrained, as long as the public safety would be endangered by his liberation. But the public safety will cease to be endangered, as soon as his propensities and dis- positions have undergone a change. The connection which thus results from the nature of things, renders it necessary, that, in deciding upon the species of restraint to be imposed, these cir- cumstances be considered jointly, how the personal liberty of the offender may be least intrenched upon, and how his reformation may be best promoted.
SCALE OF PUNISHMENTS. 185 The most common method pursued in depriving the offender of the liberty he has abused, is to erect a public jail, in which of- fenders of every description are thrust together, and left to form among themselves what species of society they can. Various circumstances contribute to imbue them with habits of indolence and vice, and to discourage industry; and no effort is made to remove or soften tliese circumstances. It cannot be necessary to expatiate upon the atrociousness of this system. Jails are, to a proverb, seminaries of vice; and he must be an uncommon pro- ficient in tlie passion and the practice of injustice, or a man of sublime virtue, who does not come out of them a much worse man than he entered.
An active observer of mankind,* with the purest intentions, and who had paid a singular attention to this subject, was struck with the mischievous tendency of the reigning system, and called the attention of the public to a scheme of solitary imprisonment. But this, though free from the defects of the established mode, is liable to very weighty objections.
It must strike every reflecting mind as uncommonly tyrannical and severe. It cannot therefore be admitted -into tlie system of mild coercion which forms the topic of our enquiry. Man is a social animal. How far he is necessarily so, will appear, if we consider the sum of advantages resulting from the social, and of which he would be deprived in the solitary state. But, inde- pendently of his original structure, he is eminently social by his habits. Will you deprive the man you imprison, of paper and books, of tools and amusements? One of the arguments in fa- vour of solitary imprisonment is, that it is necessary the offender should be called off" from wrong habits of thinking, and obliged to enter into himself. This, the advocates of solitary imprison- ment probably believe, will be most effectually done, the fewer be the avocations of the prisoner. But let us suppose that he is indulged in these particulars, and only deprived of society. How many men are there that can derive amusement from books? We are, in this respect, the creatures of habit, and it is scarcely to be expected from ordinary men, that they should mould them- selves to any species of employment, to which in their youth they were strangers. But he that is most fond of study, has his moments when study pleases no longer. The soul yearns, with inexpressible longings, for the society of its like. Because the public safety unwillingly commands the confinement of an of- fender, must he for that reason never light up this countenance with a smile? Who can tell the sufferings of him who is con- demned to uninterrupted solitude? Who can tell that this is not, to the majority of mankind, the bitterest torment that human ingenuity can inflict? A mind sufficiently sublime might per- haps conquer this inconvenience: but the powers of such a mind do not enter into the present question.
• Mr. Howard.
186 SCAL'E OF PUNISHMENTS.
From the examination of solitary imprisonment, in itself con- -sidered, we are naturally led to enquire into its real tendency, as to the article of reformation. To be virtuous, it is requisite that we should consider men, and their relation to each other. As a preliminary to this study, it is necessary that we should be shut out Irom the society of men? Shall Ave be most effectually formed to justice, benevolence and prudence in our intercourse with each other, in a state of solitude? Will not our selfish and unsocial dispositions be perpetually increased? What temptation has he to think of benevolence or justice, who has no opportunity to •exercise it? The true soil in which atrocious crimes are found to germinate, is a gloomy and morose disposition. Will his heart become much either softened or expanded, who breathes the atmosphere of a dungeon? Surely it would be better, in this respect, to imitate the system of the universe, and, if we would ieach justice and humanity, transplant those we would teach into •a simple and reasonable state of society. Solitude, absolutely •considered, may instigate us to serve ourselves, but not to seiTC our neighbours. Solitude, imposed under too few limitations, .may be a nursery for madmen and idiots, but not for useful jnembers of society.
. Another idea which has suggested itself with regard to the re- moval of ofi"enders from the community they have injured, is that of reducing them to a state of slavery or hard labour. The true refutation of this system is anticipated in what has been already jsaid. To the safety of the community it is unnecessary. As a means to the reformation of the offender, it is inexpressibly ill- conceived. Man is an intellectual being. There is no way to make him virtuous, but in calling forth his intellectual powers. There is no way to make him virtuous, but by making him inde- pendent. He must study the laws of nature, and the necessary ■consequence of actions, not the arbitrary caprice of his superior. Do you desire that I should work? Do not drive me to it with the whip; for, if, before, I thought it better to be idle, this will but increase my alienation. Persuade my understanding, and render it the subject of my choice. It can only be by the most deplorable perversion of reason, that we can be induced to believe any species of slavery, from the slavery of the school -boy to that ■of tlie most unfortunate negro in our West India plantations, favourable to virtue.* A scheme greatly preferable to any of these, and which has been tried under various forms, is that of transportation or banisli- * The institution of personal slavery has, -within a few years, made a con- «iderable progress in the island of Great Britain. The first step was that of sending criminals, whose guilt was of an inferior description, to raise ballast from the bed of the Thames, The second step, more serious in its nature, appears to have resulted from the well intended, but misguided, philanthropy of Mr. Howard, This consisted in the erecting jails of solitary confinement in various parts of the country. The prisoners in these jails spend a large portion of their time shut up in silent and drearj- cells, like so many madmen. xlie r«st of their time is employed in what is called hard labour, under the SCALE OF PUNISHMEKTS. 187 jnent. This scheme, under the most judicious modifications, is liable to objection. It would be strange if any scheme of coer- cion or violence wore not so. But it has been made appear still more exceptionable, than it will be found in its intrinsic nature, by the crude and incoherent circumstances with which it has usually been executed.
Banishment in its simple form, that is, a mere prohibition of .residence, has, at least in certain aggravated eases, a strong ap- pearance of injustice. The citizen whose presence we will not -endure in our own country, wc have a very questionable right to impose upon any other.
Banishment has sometimes been joined with slavery. Such •was the practice of Great Britain previously to the defection of her American colonies. This cannot stand in need of a separate refutation.
Avery usual species of banishment is removal to a country yet unsettled. Something may be alleged in favour of this mode of proceeding. The labour by which the undisciplined mind is best weaned from the vicious habits of a corrupt society, is the labour, not which is prescribed by the mandate of a superior, but which is imposed by the necessity of subsistence. The first settlement of Rome, by Romulus and his vagabonds, is a happy image of this, whether we consider it as a real history, or as the ingenious fiction of a writer well acquainted with the principles of mind. Men who are freed from the injurious institutions of European government, and obliged to begin the world for themselves, are in the direct road to be virtuous.
Two circumstances have hitherto contributed to render this project abortive. First, that the mother-country pursues tliis species of colony with her hatred. The chief anxiety is, in rea- lity, to render its residence odious and uncomfortable, with the vain idea of deterring ofienders. The chief anxiety ought to be, to smooth their difficulties, and contribute to their happiness. We should recollect that the colonists are men, for whom we ought to feel no sentiments but those of kindness and compassion. If we were reasonable, we should regret the cruel exigence that obliges us to treat them in a manner unsuitable to the nature of mind; and having complied with the demand of that exigence, we should next be anxious to confer upon them every benefit in our power. But we are unreasonable. We harbour a thousand savage feelings of resentment and vengeance. We thrust them out to the remotest corner of the world. We subject them to inspection of certain ignorant and insolent task-masters. It is asserted that, in one of these jails (Clerkenwell New Prison,) its unfortunate tenants are engag-ed for five houn in each day, in trundling a wlioel-barrow round in a circle. The cruelty of this imposition is inexpressibly heightened by its impudent usclessness From this instance we may perceive, that the in- ventiveness of tyranny did not perish with the race of the Dionysii. Cases of this sort it is our duty, as citizens, to notice, that the cliance of their existing^ ■uithout the knowledge of those to wlinsf province ih'.ir superintendence be- longs may be removtrd.
188 ECALE or PUNISHMEXTS.
perish by multitudes with hardship and hunger. Perhaps, if our treatment of such unfortunate men were sufficiently humane, banishment to the Hebrides would prove as eflectual as banish- ment to the Antipodes.
Secondly, it is absolutely necessary, upon the principles here explained, that these colonists, after having been sufficiently pro- vided in the outset, should be left to themselves. We do worse than nothing, if we pursue them into their obscm-c retreat with the inauspicious influence of our European institutions. Why trouble ourselves with sending magistrates and officers to govern and direct them? Do we suppose that, if left to themselves, thoy would universally destroy each other? On the contrary, new situations make new minds. The worst criminals, when turned adrift in a body, and reduced to feel the churlish fang of necessity, conduct themselves upon reasonable principles, and have been found to proceed with a sagacity and public spirit, that might put the proudest monarchy to the blush.
Jleanwhile let us not forget the inherent vices of punishment, which present themselves from whatever point the subject is viewed. Colonisation may be thought the most eligible of those expedients which have been stated, but it is attended with con- siderable difficulties. The community judges of a certain indi- vidual, that his residence cannot be tolerated among them con- sistently with the general safety. In denying him his choice among other communities do they not exceed their commission? What treatment shall be awarded him, if he return from the banishment to which he was sentenced? — These difficulties (and many others might be subjoined to these,) are calculated to bring back the mind to the absolute injustice of punishment, and to render us inexpressibly anxious for the period at wliich it shall be abolished.
To conclude. The obseivations of this chapter arc relative to a theory, which affirmed that it might be the duty of individuals, but never of communities, to exert a certain species of political coercion; and which founded this duty upon a consideration of the benefits of public security. Under these circumstances then, every individual is bound to judge for himself, and to yield his countenance to no other coercion, than that which is indispensibly necessary. He will, no doubt, endeavour to meliorate those in- stitutions, with which he cannot prevail upon his countrymen to part. He will decline all concern in the execution of such, as abuse the plea of public security to atrocious purposes. Laws may easily be found in almost every code, which, on account of the iniquity of their provisions, are suffered to fall into disuse by general consent. Every lover of justice will, in this way, con- tribute to the repeal of laws that wantonly usurp upon the in- dependence of mankind, whether by the multiplicity of their re- strictions, or the sevcritv of their sanctions.
OF EVIDENCE. 189 CHAP. VII.
OF EVIDENCE.
Difficulties to lohlch this subject is liable — exemplified in the distijictici between overt actions and intentions — Reasons against this distinction. Principle in which it is founded Having sought to ascertain the decision in which questions of offence against the general safety ought to terminate, it only re- mains under this head of enquiry to consider the principles ac- cording to which the trial should be conducted. These principles may for the most part be refen-ed to two points, the evidence that is to be required, and the method to be pursued by us in classing offences.
The difficulties to which the subject of evidence is liable, have been stated in the earlier divisions of this work.* It maybe worthwhile, in this place, to recollect the difficulties which attend upon one particular class of evidence, it being scarcely possible that the imagination of every reader should not suffice him to apply this text, and to perceive how easily tlie same kind of enumeration might be extended to any other class.
It has been asked, " Why intentions are not subjected to the animadversion of criminal justice, in the same manner as direct acts of offence?*' The arguments in favour of their being thus subjected are obvious. "The proper object of political superintendence is not the past, but the future. Society cannot justly employ punish- ment against any individual, however atrocious may have been his misdemeanours, from any other than a prospective considera- tion, that is, a consideration of the danger with which his habits may be pregnant to the general safety. Past conduct cannot pro- perly fall under the animadversion of government, except so far as it is an indication of the future. But past conduct appears, at first sight, to afford a slighter presumption as to what the delin- quent will do hereafter, than declared intention. The man who professes his determination to commit murder, seems to be scarcely a less dangerous member of society, than he who, having already committed murder, has no apparent intention to repeat his offence." Yet all governments have agreed, either to pass over the menace in silence, or to subject the offender to a much less degree of punishment, than they employ against him by whom the crime has been perpetrated. It may be right perhaps to yield them some attention when they thus agree in forbearance, though little is probably due to their agreement in inhumanity.
This distinction, so far as it is founded in reason, has relation rarticularlj- Chap. IV.
1^ OF LAW.
principally to the uncertainty of evidence. Before the intention of any man can be ascertained, in a court of justice, from the consideration of the words he has employed, a variety of circum- stances must be taken into the account. The witness heard the words which were employed: does he repeat them accurately, or has not his want of memory caused him to substitute, in the room of some of them, words of his own? Before it is possible to de- cide, upon the confident expectation I may entertain, that these words will be followed with correspondent actions, it is necessary I should know the exact tone with which they were delivered, and gesture with which they were accompanied. It is necessary I should be acquainted with the context, and the occasion that produced them. Their construction will depend upon the quan- tity of momentary heat or rooted malice with which they were delivered; and words, which appear at first sight of tremendous- import, will sometimes be found, upon accurate investigation, to have had a meaning purely ironical in the mind of the speaker. These considerations, together with the odious nature of punish- ment in general, and the extreme mischief that may attend our restraining the faculty of speech, in addition to the restraint we conceive ourselves obliged to put on men's actions, will pro- bably be found to afl'ord a sufficient reason, why words ought sel- dom or never to be made a topic of political animadversion.
CHAP. viir.
Arguments by which it is recommended. — Ansu-er, — Law is, 1. endless — particularly in a free state, — Causes of this disadvantage. — 2. un- certain— instanced in questions of jn-operty. — Mode in wJiich it must be studied. — 3. pretends toforetel future events. — Laws are a species of promises — check the freedom of opinion — are destructive of the principles of reason. — Dishonesty of laiuyers. — An honest lawyer mischievous. — Abolition of law vindicated 07i the score of wisdom — of candojir—J'rom the nature of man. — Future hisiory of political jus- tice.— Errors that might arise in the commencement, — Its gradual progress. — Its effects on criminal law — on property.
A ruRTHEn article of great importance in the trial of offences, is that of the method to be pursued by us in classing them, and the consequent apportioning the degree of animadversion to the cases that may arise. This article brings us to the direct con- sideration of law, which is, without doubt, one of the most im- portant topics upon which human intellect can be employed. It is law that has hitherto be^n regarded, in countries calling them- OF LAW. 191 OF LAW. 191 selves civilised, as tlie standard, by which to measure all offences- and irregularities that fall under public animadversion. Let us fairly investigate the merits of this choice.
The comparison which has presented itself to those by whom the topic has been investigated, has hitherto been between law on one side, and the arbitrary will of a despot on the other. But if we would estimate truly the merits of law, we should first con- sider it, as it is initself, and then, if necessary, search for the most eligible principle that may be substituted in its place.
It has been recommended, as "affording information to the difforenr members of the community, respecting the principles which will be adopted in deciding upon their actions." It has been represented as the highest degree of iniquity, " to try men by an ex post facto law, or indeed in any other manner, than by the letter of a law, formally made, and sufficiently pro- mulgated."
How far it will be safe altogether to annihilate this principle, we shall presently have occasion to enquire. It is obvious, at first sight, to remark, that it is of most importance, in a country where the system of jurisprudence is most capricious and absurd. If it be deemed criminal in any society to wear clothes of a par- ticular texture, or buttons of a particular composition, it is un- avoidable to exclaim, that it is high time the jurisprudence of that society should inform its members what are the fantastic rules by which they mean to proceed. But, if a society be con- tented with the rules of justice, and do not assume to itself tlie right of distorting or adding to those rules, there law is evidently a less necessary institution. The rules of justice woiild be more clearly and effectually taught, by an actual intercourse \yith human society, unrestrained by the fetters of prepossession, than they can be by catechisms and codes.* One result of the institution of law is, that the institution, once begun, can never be brought to a close. Edict is heaped upon edict, and volume upon volume. This will be most the case^ where the government is most popular, and its proceedings have most in them of the nature of deliberation. Surely this is no slight indication that the principle is wrong, and that, of con- sequence, the further we proceed in the path it marks out to us, the more we shall be bewildered. No task can be less hopeful than that of effecting a coalition between a right principle and a wrong. He that seriously and sincerely attempts it, will perhaps expose himself to more palpable ridicule, than he who, instead of professing two opposite systems, should adhere to the worst.
There is no maxim more clear than this, " Every case is a rule to itself." No action of any man was ever the same as any other action, had ever the same degree of utility or injury. It should seem to bo the business of justice to distinguish the qualities of men, and not, which has hitlierto been the practice, « Book VI., Chap. yiir.
192 OF LAW.
to confound tliem. But what has been the result of an attempt to do this in relation to law? As new cases occur, the law is per- petually found deficient. How should it be otherwise? Law- givers have not the faculty of unlimited prescience, and cannot define that which is boundless. The alternative that remains is, either to wrest the law to include a case which was never in the contemplation of its authors, or to make a new law^ lo provide for this particular case. Much has been done in the first of these modes. The quibbles of lawyers, and the arts by which they re- fine and distort the sense of the law, are proverbial. But, though much is. done, every thing cannot be thus done. The abuse will sometimes be too palpable. Not to say that the very education that enables the lawyer, when he is employed for the prosecutor, to iind out offences the lawgiver never meant, enables him, when he is employed for the defendant, to discover subterfuges, that re- duce the law to a nullity. It is therefore perpetually necessary to make new laws. These laws, in order to escape evasion, are frequently tedious, minute, and circumlocutory. The volume in which justice records her prescriptions is for ever increasing, and the world would not contain the books that might be written.
The consequence of the infinitude of law, is its uncertainty. This strikes at the principle upon which law is founded. Laws were made to put an end to ambiguity, and that each man might knoAV what he had to expect. How well have they answered this purpose? Let us instance in the article of property. Two men go to law for a certain estate. They would not go to law if they had not both of them an opinion of their success. But Ave may suppose them partial in their own case. They would not con- tinue to go to law, if they were not both promised success by their lawyers. Law was made, that a plain man might know Avhat he had to expect; and yet the most skilful practitioners differ about the event of my suit. It will sometimes happen, that the most celebrated pleader in the kingdom, or the first coimsel in the ser- vice of the crown, shall assure me of infallible success, five minutes before another law-officer, styled the keeper of the king's conscience, by some unexpected juggle, decides it against me. Would the issue have been equally uncertain, if I had had nothing to trust to, but the plain unperverted sense of a jurj' of my neigh- bours, founded in the ideas they entertained of general justice?
Lawyers have absurdly maintained, that the expensiveness of laAV is necessary to prevent the unbounded multiplication of suits; but the true source of this multiplication is uncertainty. Men do not quarrel about that which is evident, but that which is obscure.
He that would study the laws of a country accustomed to legal security, must begin Avilh the volumes of the statutes. He must add a strict enquiry into the common or unwritten law; and he ought to digress into the civil, the ecclesiastical, and canon law. To understand the intention of the authors of a law, he must be acquainted with their characters and views, and with the various OP LAW. 193