BOOK VII
OF CRIMES AND PUNISHMENTS

CHAPTER II

General Disadvantages of Punishment

Conscience in matters of religion considered - 
the conduct of life. - Best practicable
criterion of duty - not the decision of other
men, but of our own understanding. - Ten
dency of coercion. - Its various classes con-
      sidered.

HAVING thus endeavored to show what denominations of punishment justice, and a sound idea of the nature of man, would invariably proscribe, it belongs to us, in the further prosecution of the subject, to consider merely that coercion, which it has been supposed right to employ, against persons convicted of past injurious action, for the purpose of preventing future mischief. And here we will, first, recollect what is the quantity of evil which accrues from all such coercion; and secondly, examine the cogency of the various reasons by which it is recommended. It will not be possible to avoid the repetition of some of the reasons which occurred in the preliminary discussion of the exercise of private judgment.¹ But those reasonings will now be extended, and will perhaps derive additional advantage from a fuller arrangement.

It is commonly said 'that no man ought to be compelled, in matters of religion, to act contrary to the dictates of his conscience. Religion is a principle which the practice of all ages has deeply impressed upon the human mind. He that discharges what his apprehensions prescribe to him on the subject stands approved to the tribunal of his own mind, and, conscious of rectitude in his intercourse with the author of nature, cannot fail to obtain the greatest of those advantages, whatever may be their amount, which religion has to bestow. It is in vain that I endeavor, by persecuting statutes, to compel him to resign a false religion for a true. Arguments may convince, but persecution cannot. The new religion, which I oblige him to profess contrary to his own conviction, however pure and holy it may be in its own nature, has no benefits in store for him. The sublimest worship becomes transformed into a source of depravity when it is not consecrated by the testimony of a pure conscience. Truth is the second object in this respect, integrity of heart is the first: or rather, a proposition that, in its abstract nature, is truth itself converts into rank falsehood and mortal poison, if it be professed with the lips only, and abjured by the understanding. It is then the foul garb of hypocrisy. Instead of elevating the mind above sordid temptations, it perpetually reminds the worshiper of the degrading subjection to which he has yielded. Instead of filling him with sacred confidence, it overwhelms him with confusion and remorse.'

The inference that has been made from these reasonings is 'that criminal law is eminently misapplied in affairs of religion, and that its true province is civil misdemeanors'. But this distinction is by no means so satisfactory and well founded as at first sight it may appear.² Is it not strange that men should have affirmed religion to be the sacred province of conscience, while moral duty is to be left undefined to the decision of the magistrate? Is it of no consequence whether I be the benefactor of my species, or their bitterest enemy? whether I be an informer, a robber, or a murderer? whether I be employed, as a soldier, to extirpate my fellow beings, or, as a citizen, contribute my property to their extirpation? whether I declare the truth, with that firmness and unreserve which an ardent philanthropy will not fail to inspire, or suppress science, lest I be convicted of blasphemy, and fact, lest I be convicted of a libel? whether I contribute my efforts for the furtherance of political improvement, or quietly submit to the exile of a prince of whose claims I am an advocate, or to the subversion of liberty, the most valuable of all human possessions? Nothing can be more clear than that the value of religion, or of any other species of opinion, lies in its moral tendency. If I am to hold as of no account the civil power, for the sake of that which is the means, how much more when it rises in contradiction to the end?

Of all human concerns morality is the most interesting. It is the constant associate of all our transactions: there is no situation in which we can be placed, no alternative that can be presented to our choice, respecting which duty is silent. 'What is the standard of morality and duty?' Justice. Not the arbitrary decrees that are in force in a particular climate; but those laws of reason that are equally obligatory wherever man is to be found. There is an obvious distinction between those particulars in each instance which constitute the permanent nature of the case before us, and those interpositions of a peremptory authority to which it may be prudent to submit, but which cannot alter our ideas of the conduct to which independent man ought to adhere. What then are the consequences that will result from the obedience of compulsion, and not of the understanding?

No principle of moral science can be more obvious and fundamental than that the motive by which we are induced to an action constitutes an essential part of its character. This idea has perhaps sometimes been carried too far. A good motive is of little value when it is not joined to a salutary exertion. But, without a good motive, the most extensively useful action that ever was performed can contribute little to the improvement or honor of him that performs it. We owe him no respect if he has been induced to perform it by ideas of personal advantage, or the influence of a bribe. It is, in some respects, worse, if the motive that governed him were the sentiment of fear. If we hold in any estimation the attributes of man, if we desire the improvement of our species, we ought particularly to desire that they should be led in the path of usefulness by generous and liberal considerations, that their obedience should be the obedience of the heart, and not that of a slave.

Nothing can be of higher importance to the improvement of the human mind than that, whatever be the conduct we may be compelled to pursue, we should have distinct and accurate notions of the merits of every moral question in which we may be concerned. In all doubtful questions, there are but two criteria possible, the decisions of other men's wisdom, and the decisions of our own understanding. Which of these is conformable to the nature of man? Can we surrender our own understanding? However we may strain after implicit faith, will not conscience in spite of ourselves whisper us, 'The decree is equitable, and this is founded in mistake?' Will there not be in the minds of the votaries of superstition a perpetual dissatisfaction, a desire to believe what is dictated to them, accompanied with a want of that in which belief consists, evidence and conviction? If we could surrender our understanding, what sort of beings should we become?

The direct tendency of coercion is to set our understanding and our fears, our duty and our weakness, at variance with each other. Coercion first annihilates the understanding of the subject upon whom it is exercised, and then of him who employs it. Dressed in the supine prerogatives of a master, he is excused from cultivating the facilities of a man. What would not man have been, long before this, if the proudest of us had no hopes but in argument, if he knew of no resort beyond, if he were obliged to sharpen his faculties, and collect his powers, as the only means of effecting his purposes?

Let us reflect a little upon the species of influence that coercion employs. It avers to its victim that he must necessarily be in the wrong, because I am more vigorous or more cunning than he. Will vigor and cunning be always on the side of truth? It appeals to force, and represents superior strength as the standard of justice. Every such exertion implies in its nature a species of contest. The contest is often decided before it is brought to open trial, by the despair of one of the parties. The ardor and paroxysm of passion being over, the offender surrenders himself into the hands of his superiors, and calmly awaits the declaration of their pleasure. But it is not always so. The depredator that by main force surmounts the strength of his pursuers, or by stratagem and ingenuity escapes their toils, so far as this argument is valid, proves the justice of his cause. Who can refrain from indignation when he sees justice thus miserably prostituted? Who does not feel, the moment the contest begins, the full extent of the absurdity that the appeal includes? The magistracy, the representative of the social system, that declares war against one of its members, in behalf of justice, or in behalf of oppression, appears almost equally, in both cases, entitled to our censure. In the first case, we see truth throwing aside her native arms and her intrinsic advantage, and putting herself upon a level with falsehood. In the second, we see falsehood confident in the casual advantage she possesses, artfully extinguishing the new born light that would shame her in the midst of her usurped authority. The exhibition in both is that of an infant crushed in the merciless grasp of a giant.

No sophistry can be more gross than that which pretends to bring the parties to an impartial hearing. Observe the consistency of this reasoning! We first vindicate political coercion, because the criminal has committed an offense against the community at large, and then pretend, while we bring him to the bar of the community, the offended party, that we bring him before an impartial umpire. Thus in England, the king by his attorney is the prosecutor, and the king by his representative is the judge. How long shall such inconsistencies impose on mankind? The pursuit commenced against the supposed offender is the posse comitatus, the armed force of the whole, drawn out in such portions as may be judged necessary; and, when seven millions of men have got one poor, unassisted individual in their power, they are then at leisure to torture or to kill him, and to make his agonies a spectacle to glut their ferocity.

The argument against political coercion is equally strong against the infliction of private penalties, between master and slave, and between parent and child. There was, in reality, not only more of gallantry, but more of reason in the Gothic system of trial by duel than in these. The trial of force is over in these, as we have already said, before the exertion of force is begun. All that remains is the leisurely infliction of torture, my power to inflict it being placed in my joints and my sinews. This whole argument seems liable to an irresistible dilemma. The right of the parent over his offspring lies either in his superior strength, or his superior reason. If in his strength, we have only to apply this right universally in order to drive all morality out of the world. If in his reason, in that reason let him confide. It is a poor argument of my superior reason that I am unable to make justice be apprehended and felt, in the most necessary cases, without the intervention of blows.

Let us consider the effect that coercion produces upon the mind of him against whom it is employed. It cannot begin with convincing; it is no argument. It begins with producing the sensation of pain, and the sentiment of distaste. It begins with violently alienating the mind from the truth with which we wish it to be impressed. It includes in it a tacit confession of imbecility. If he who employs coercion against me could mold me to his purposes by argument, no doubt he would. He pretends to punish me because his argument is strong; but lie really punishes me because his argument is weak.

Footnotes