BOOK VII
OF CRIMES AND PUNISHMENTS

CHAPTER I

LIMITATIONS OF THE DOCTRINE OF PUNISHMENT WHICH RESULT FROM THE PRINCIPLES OF MORALITY

	Definition of punishment. - Nature of crime. -
	Retributive justice not independent and
	absolute - not to be vindicated from the system
	of nature. - Force of the term, desert. - Con-
			clusion.

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 vise.

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 vise, 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 vise 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 vise, 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 vise, 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 analyze 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.

Footnotes