1. CHAPTER I
LIMITATIONS OF THE DOCTRINE OF PUNISHMENT WHICH RESULT FROM THE PRINCIPLES
OF MORALITY
The subject of punishment is perhaps the most fundamental in the science
of politics. Men associated for the sake of mutual protection and benefit.
It has already appeared that the internal affairs of such associations are
of an inexpressibly higher importance than their external.[1] It has appeared
that the action of society, in conferring rewards, and superintending opinion,
is of pernicious effect.[2] Hence it follows that government, or the action
of society in its corporate capacity, can scarcely be of any utility except
so far as it is requisite for the suppression of force by force; for the
prevention of the hostile attack of one member of the society, upon the person
or property of another, which prevention is usually called by the name of
criminal justice, or punishment.
Before we can properly judge of the necessity or urgency of this action
of government, it will be of some importance to consider the precise import
of the word punishment. I may employ force to counteract the hostility that
is actually committing on me. I may employ force to compel any member of
the society to occupy the post that I conceive most conducive to the general
advantage, either in the mode of impressing soldiers and sailors, or by obliging
a military officer, or a minister of state, to accept, or retain his appointment.
I may put a valuable man to death for the common good, either because he
is infected with a pestilential disease, or because some oracle has declared
it essential to the public safety. None of these, though they consist in
exertion of force for some moral purpose, comes within the import of the
word punishment. Punishment is also often used to signify the voluntary infliction
of evil upon a vicious being, not merely because the public advantage demands
it, but because there is apprehended to be a certain fitness and propriety
in the nature of things that render suffering, abstractedly from the benefit
to result, the suitable concomitant of vice.
The justice of punishment however, in this import of the word, can only
be a deduction from the hypothesis of free will, if indeed that hypothesis
will sufficiently support it; and must be false, if human actions are necessary.
Mind, as was sufficiently apparent when we treated of that subject,[3] is
an agent in no other sense than matter is an agent. It operates and is operated
upon, and the nature, the force and line of direction of the first, is exactly
in proportion to the nature, force and line of direction of the second. Morality,
in a rational and designing mind, is not essentially different from morality
in an inanimate substance. A man of certain intellectual habits is fitted
to be an assassin; a dagger of a certain form is fitted to be his instrument.
The one or the other excites a greater degree of disapprobation, in proportion
as its fitness for mischievous purposes appears to be more inherent and direct.
I view a dagger, on this account, with more disapprobation than a knife,
which is perhaps equally adapted for the purposes of the assassin; because
the dagger has few or no beneficial uses to weigh against those that are
hurtful, and because it has a tendency by means of association to the exciting
of evil thoughts. I view the assassin with more disapprobation than the dagger
because he is more to be feared, and it is more difficult to change his vicious
structure, or to take from him his capacity to injure. The man is propelled
to act by necessary causes and irresistible motives, which, having once occurred,
are likely to occur again. The dagger has no quality adapted to the contraction
of habits, and, though it have committed a thousand murders, is not more
likely (unless so far as those murders, being known, may operate as a slight
associated motive with the possessor) to commit murder again. Except in the
articles he specified, the two cases are exactly parallel. The assassin cannot
help the murder he commits, any more than the dagger.
These arguments are merely calculated to set in a more perspicuous light
a principle which is admitted by many by whom the doctrine of necessity has
never been examined; that the only measure of equity is utility, and whatever
is not attended with any beneficial purpose is not just. This is so evident
that few reasonable and reflecting minds will be found inclined to deny it.
Why do I inflict suffering on another? If neither for his own benefit nor
the benefit of others, can I be right? Will resentment, the mere indignation
and horror I have conceived against vice, justify me in putting a being to
useless torture? 'But suppose I only put an end to his existence.' What,
with no prospect of benefit either to himself or others? The reason in mind
more easily reconciles itself to this supposition is that we conceive existence
to be less a blessing than a curse to a being incorrigibly vicious. But,
in that case, the supposition does not fall within the terms of the question:
I am in reality conferring a benefit. It has been asked, 'If we conceive
to ourselves two beings, each of them solitary, but the first virtuous, and
the second vicious, the first inclined to be the highest acts of benevolence,
if his situation were changed for the social the second to malignity, tyranny
and injustice, do we not eel that the first is entitled to felicity in preference
to the second? If there be any difference in the question, it is wholly caused
by the extravagance of the supposition. No being can be either virtuous,
or vicious, who has no opportunity of influencing the happiness of others.
He may indeed, though now solitary, recollect or imagine a social state;
but this sentiment, and the propensities it generates can scarcely be vigorous,
unless he have hopes of being at some future time, restored to that state.
The true solitaire cannot be considered as a moral being unless the morality
we contemplate be that which has relation to his own permanent advantage.
But, if that be our meaning punishment, unless for reform, is peculiarly
absurd. His conduct vicious, because it has a tendency to render him miserable:
shall we inflict calamity upon him, for this reason only, because he has
already inflicted calamity upon himself? It is difficult for us to imagine
to ourselves a solitary intellectual being, whom no future accident shall
ever render social. It is difficult for us to separate, even an idea, virtue
and vice from happiness and misery, and, of consequence, not to imagine that,
when we bestow a benefit upon virtue, we bestow it where it will turn to
account; and when we bestow a benefit upon vice, we bestow it where it will
be unproductive. For these reasons, e question of desert, as it relates to
a solitary being, will always have a tendency to mislead and perplex.
It has sometimes been alleged that the course of nature has annexed suffering
to vice, and has thus led us to the idea of punishment here referred to.
Arguments of this sort should be listened to with great caution. It was by
reasonings of a similar nature that our ancestors justified the practice
of religious persecution: 'Heretics and unbelievers are the objects of God's
indignation; it must therefore be meritorious in us to maltreat those whom
God has cursed.' We know too little of the system of the universe are too
liable to error respecting it, and see too small a portion, to entitle us
to form our moral principles upon an imitation of what we conceive to be
the course of nature.
Thus it appears, whether we enter philosophically into the principle of
human actions, or merely analyse their ideas of rectitude and justice which
have the universal consent of mankind, that, in the refined and absolute
sense in which that term has frequently been employed, there is no such thing
as desert; in other words, that it cannot be just that we should inflict
suffering on any man, except far as it tends to good. Hence it follows also
that punishment, in the last of the senses enumerated towards the beginning
of this chapter, by no means accords with any sound principles of reasoning.
It is right that I should inflict suffering, in every case where it can be
clearly shown that such infliction will produce an overbalance of good. But
this infliction bears no reference to the mere innocence or guilt of the
person upon whom it is made. An innocent man is the proper subject of it,
if it tend to good. A guilty man is the proper subject of it under no other
point of view. To punish him, upon any hypothesis, for what is past and irrecoverable,
and for the consideration of that only, must be ranked among the most pernicious
exhibitions of an untutored barbarism. Every man upon whom discipline is
employed is to be considered as to the purpose of this discipline as innocent.
The only sense of the word punishment that can be supposed to be compatible
with the principles of the present work is that of pain inflicted on a person
convicted of past injurious action, for the purpose of preventing future
mischief.
It is of the utmost importance that we should bear these ideas constantly
in mind, during our examination of the theory of punishment. This theory
would, in the past transactions of mankind, have been totally different if
they had divested themselves of the emotions of anger and resentment; if
they had considered the man who torments another for what he has done as
upon a par with the child who beats the table; if they had conjured up to
their imagination, and properly estimated, the man who should shut up in
prison and periodically torture some atrocious criminal, from the mere consideration
of the abstract congruity of crime and punishment, without a possible benefit
to others or to himself; if they had regarded punishment as that which was
to be regulated solely, by a dispassionate calculation of the future, without
suffering the past, on its own account, for a moment to enter into the proceeding.
[[2]]
Book V, Chap. XII; Book VI, throughout.
[[3]]
Book IV, Chap. VIII.