3. CHAPTER III
OF THE PURPOSES OF PUNISHMENT
Let us proceed to consider the three principal ends that punishment proposes
to itself, restraint, reformation and example. Under each of these heads
the arguments on the affirmative side must be allowed to be cogent, not irresistible.
Under each of them considerations will occur that will oblige us to doubt
universally 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 nevertheless deserve to be first
considered. In this case I am employed (suppose, for example, a drawn sword
is pointed at my own breast or that of another, with threats of instant destruction)
in 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 communicate 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
I' and with these few words drove him to flight; it was that the grandeur
of the idea conceived 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 communicated, 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
intrepid 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 the 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 against 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 which 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 injury which is
to be feared lie will commit.' This is the very argument which has been employed
to justify the most execrable tyrannies. By what reasonings have the inquisition,
the employment 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 conduct; the immoral sentiments
lead, by a very probable consequence, to immoral actions. There is not more
reason, in many 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,
be will not scruple to have recourse to this expedient. Nothing can be more
obvious than that, whatever precautions may be allowable with respect to
the future, justice will reluctantly class among these precautions a violence
to be committed on my neighbour. Nor it is oftener unjust than it is superfluous.
Why not arm myself with vigilance and energy, instead of locking up every
man whom my imagination may bid me fear, that I may spend my days in undisturbed
inactivity? 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 with 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 arguments under
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, that can be devised.
The second object which punishment may be imagined to propose to itself
is reformation. We have already seen various objections that may be offered
to it in this point of view. Coercion cannot convince, cannot conciliate,
but on the contrary alienates the mind of him against whom it is employed.
Coercion 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 arbitrary will, 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.[1] In an even course of easy and prosperous circumstances,
the faculties sleep. But, when great and urgent occasion is presented, it
should seem that the 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 certain 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 years? 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 coercion 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 great limitations, and that he cannot depend upon being treated with
justice. The lesson which coercion reads to him is, 'Submit to force, and
abjure reason. Be not directed by the convictions of your 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,
perhaps it is further requisite that the coercion we use should be flagrantly
unjust, since the improvement seems to lie, not in submission, but resistance.
But it is certain that truth is adequate to excite the mind, without the
aid of adversity. By truth is here understood a just view of all the attractions
of industry, knowledge and benevolence. 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 with
fullness of 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 would be more
effectual for the improvement of the mind, than all the modes of angry or
benevolent coercion that ever were 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 humanity. But, the moment
vengeance presented itself as a stimulus on the one side, or the exhibition
of a terrible example 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 constantly
fails of its purpose. 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 invention is exhausted in vain.[2] 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 feet the emergencies to which we
are exposed, and we feel, or think we feel, the dictates of reason inciting
us to their relief. Whatever ideas we form in opposition to the mandates
of law, we draw, with sincerity, though it may be with some mixture of mistake,
from the essential 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 possesses 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 argument, reason and conviction, and requires us to think such
a species 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 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 you inflict pain upon me, you are either just
or unjust, If you be just, it should seem necessary that there should be
something in me that makes me 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 why 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 injudicious 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 reasonings of the following
chapter. bar
[[2]]
Beccaria, Dei Delitti e delle Pene.