BOOK VII
OF CRIMES AND PUNISHMENTS

---

CHAPTER V

OF PUNISHMENT CONSIDERED AS A TEMPORARY EXPEDIENT

 
	Arguments in its favor. - Answer. - It cannot fit men for a better order of
 society. - The true remedy to private injustice described - is adapted to
 immediate practice. - Duty of the community in this respect. - Duty of
 individuals. - Illustration from the case of war - of individual defense. -
 Application. Disadvantages of anarchy - want of security - of progressive
 inquiry. - Correspondent disadvantages of despotism. - Anarchy awakens,
 despotism depresses the mind. - Final result of anarchy - how determined. -
 Supposed purposes of punishment in a temporary view - reformation - example -
 restraint. - Conclusion.

Thus much for the general merits of punishment, considered as an instrument to be applied in the government of men. It is time that we should inquire into the apology which may be offered in its behalf, as a temporary expedient. No introduction seemed more proper to this inquiry than such a review of the subject upon a comprehensive scale; that the reader might be inspired with a suitable repugnance against so pernicious a system, and prepared firmly to resist its admission, in all cases where its necessity cannot be clearly demonstrated.

The arguments in favor of punishment as a temporary expedient are obvious. It may be alleged that 'however suitable an entire immunity in this respect may be to the nature of mind absolutely considered, it is impracticable with regard to men as we now find them. The human species is at present infected with a thousand vises, the offspring of established injustice. They are full of factitious appetites and perverse habits: headstrong in evil, inveterate in selfishness, without sympathy and forbearance for the welfare of others. In time they may become accomodated to the lessons of reason; but at present they would be found deaf to her mandates, and eager to commit every species of injustice.'

One of the remarks that most irresistibly suggest themselves upon this statement is that punishment has no proper tendency to prepare men for a state in which punishment shall cease. It were idle to expect that force should begin to do that which it is the office of truth to finish, should fit men, by severity and violence, to enter with more favorable auspices into the schools of reason.

But, to omit this gross misrepresentation in behalf of the supposed utility of punishment, it is of importance, in the first place, to observe that there is a complete and unanswerable remedy to those evils, the cure of which has hitherto been sought in punishment, that is within the reach of every community, whenever they shall be persuaded to adopt it. There is a state of society, the outline of which has been already sketched,¹ that, by the mere simplicity of its structure, would lead to the extermination of offense: a state in which temptation would be almost unknown, truth brought down to the level of all apprehensions, and vise sufficiently checked, by the general discountenance, and sober condemnation of every spectator. Such are the consequences that might be expected to spring from an abolition of the craft and mystery of governing; while, on the other hand, the innumerable murders that are daily committed under the sanction of legal forms are solely to be ascribed to the pernicious notion of an extensive territory; to the dreams of glory, empire and national greatness, which have hitherto proved the bane of the human species, without producing entire benefit and happiness to a single individual.

Another observation which this consideration immediately suggests is that it is not, as the objection supposed, by any means necessary that mankind should pass through a state of purification, and be freed from the vicious propensities which ill constituted governments have implanted, before they can be dismissed from the coercion to which they are at present subjected. Their state would indeed be hopeless if it were necessary that the cure should be effected before we were at liberty to discard those practices to which the disease owes its most alarming symptoms. But it is the characteristic of a well formed society, not only to maintain in its members those virtues with which they are already imbued, but to extirpate their errors, and render them benevolent and just to each other. It frees us from the influence of those phantoms which before misled us, shows us our true advantage as consisting in independence and integrity, and binds us, by the general consent of our fellow citizens, to the dictates of reason more strongly than with fetters of iron. It is not to the sound of intellectual health that the remedy so urgently addresses itself as to those who are infected with diseases of the mind. The ill propensities of mankind no otherwise tend to postpone the abolition of coercion than as they prevent them from perceiving the advantages of political simplicity. The moment in which they can be persuaded to adopt any rational plan for this abolition is the moment in which the abolition ought to be effected.

A further consequence that may be deduced from the principles that have been delivered is that a coercion to be employed upon its own members can, in no case, be the duty of the community. The community is always competent to change its institutions, and thus to extirpate offense in a way infinitely more rational and just than that of punishment. If, in this sense, punishment has been deemed necessary as a temporary expedient, the opinion admits of satisfactory refutation. Punishment can at no time, either permanently or provisionally, make part of any political system that is built upon the principles of reason.

But, though, in this sense, punishment cannot be admitted for so much as a temporary expedient, there is another sense in which it must be so admitted. Coercion, exercised in the name of the state upon its respective members, cannot be the duty of the community; but coercion may be the duty of individuals within the community. The duty of individuals, in their political capacity, is, in the first place, to endeavor to meliorate the state of society in which they exist, and to be indefatigable in detecting its imperfections. But, in the second place, it behooves them to recollect that their efforts cannot be expected to meet with instant success, that the progress of knowledge has, in all cases, been gradual, and that their obligation to promote the welfare of society during the intermediate period is certainly not less real than their obligation to promote its future and permanent advantage. Even the future advantage cannot be effectually procured if we be inattentive to the present security. But, as long as nations shall be so far mistaken as to endure a complex government, and an extensive territory, coercion will be indispensably necessary to general security. It is therefore the duty of individuals to take an active share upon occasion in so much coercion, and in such parts of the existing system, as shall be sufficient to counteract the growth of universal violence and tumult. It is unworthy of a rational enquirer to say, 'These things are necessary, but I am not obliged to take my share in them.' If they be necessary, they are necessary for the general welfare; of consequence, are virtuous, and what no just man will refuse to perform.

The duty of individuals is, in this respect, similar to the duty of independent communities upon the subject of war. It is well known what has been the prevailing policy of princes under this head. Princes, especially the most active and enterprising among them, are seized with an inextinguishable rage for augmenting their dominions. The most innocent and inoffensive conduct on the part of their neighbors will not, at all times, be a sufficient security against their ambition. They indeed seek to disguise their violence under plausible pretenses; but it is well known that, where no such pretenses occur, they are not, on that account, disposed to relinquish the pursuit. Let us imagine then a land of freemen invaded by one of these despots. What conduct does it behoove them to adopt? We are not yet wise enough to make the sword drop out of the hands of our oppressors, by the mere force of reason. Were we resolved, like quakers, neither to oppose nor, where it could be avoided, to submit to them, much bloodshed might perhaps be prevented: but a more lasting evil would result. They would fix garrisons in our country, and torment us with perpetual injustice. Supposing it were even granted that, if the invaded nation should demean itself with unalterable constancy, the invaders would become tired of their fruitless usurpation, it would prove but little. At present we have to do, not with nations of philosophers, but with nations of men whose virtues are alloyed with weakness, fluctuation and inconstancy. At present it is our duty to consult respecting the procedure which, to such nations, may be attended with the most favorable result. It is therefore proper that we should choose the least calamitous mode of obliging the enemy speedily to withdraw himself from our territories.

The case of individual defense is of the same nature. It does not appear that any advantage can result from my forbearance, adequate to the disadvantages of suffering my own life, or that of another, a peculiarly valuable member of the community, as it may happen, to become a prey to the first ruffian who inclines to destroy it. Forbearance, in this case, will be the conduct of a singular individual, and its effect may very probably be trifling. Hence it appears that I ought to arrest the villain in the execution of his designs, though at the expense of a certain degree of coercion.

The case of an offender who appears to be hardened in guilt, and to trade in the violation of social security, is clearly parallel to these. I ought to take up arms against the despot by whom my country is inivaded, because my capacity does not enable me by arguments to prevail on him to desist, and because my countrymen will not preserve their intellectual independence in the midst of oppression. For the same reason I ought to take up arms against the domestic spoiler, because I am unable either to persuade him to desist, or the community to adopt a just political institution by means of which security might be maintained consistently with the abolition of punishment.

To understand the full extent of this duty, it is incumbent upon us to remark that anarchy as it is usually understood , and a well conceived form of society without government, are exceedingly different from each other. If the government of Great Britain were dissolved tomorrow, unless that dissolution were the result of consistent and digested views of political truth previously disseminiated among the inhabitants, it would be very far from leading to the abolition of violence. Individuals, freed from the terrors by which they had been accustomed to be restrained, and not yet placed under the happier and more rational restraint of public inspection, or convinced of the wisdom of reciprocal forbearance, would break out into acts of injustice, while other individuals, who desired only that this irregularity should cease, would find themselves obliged to associate for its forcible suppression. We should have all the evils and compulsory restraint to a regular government, at the same time that we were deprived of that tranquility and leisure which are its only advantages.

It may not be useless in this place to consider, more accurately than we have hitherto done, the evils of anarchy. Such a review may afford us a criterion by which to discern, as well the comparative value of different institutions, as the precise degree of coercion which is required for the exclusion of universal violence and tumult.

Anarchy, in its own nature, is an evil of short duration. The more horrible are the mischiefs it inflicts, the more does it hasten to a close. But it is nevertheless necessary that we should consider both what is the quantity of mischief it produces in a given period, and what is the scene in which it promises to close. The first victim that is sacrificed at its shrine is personal security. Every man who has a secret foe ought to dread the dagger of that foe. There is no doubt that, in the worst anarchy, multitudes of men will sleep in happy obscurity. But woe to him who, by whatever means, excites the envy, the jealousy or the suspicion of his neighbor! Unbridled ferocity instantly marks him for its prey. This is indeed the principal evil of such a state, that the wisest, the brightest, the most generous and bold will often be most exposed to an immature fate. In such a state we must bid farewell to the patient lucubrations of the philosopher, and the labor of the midnight oil. All is here, like the society in which it exists, impatient and headlong. Mind will frequently burst forth, but its appearance will be like the coruscations of the meteor, not like the mild and equable illumination of the sun. Men who start forth into sudden energy will resemble in temper the state that brought them to this unlooked for greatnes. They will be rigorous, unfeeling and fierce; and their ungoverned passions will often not stop at equality, but incite them to grasp at power.

With all these evils, we must not hastily conclude that the mischiefs of anarchy are worse than those which government is qualified to produce. With respect to personal security, anarchy is perhaps a condition more deplorable than despotism; but then it is to be considered that despotism is as perennial as anarchy is transitory. Despotism, as it existed under the Roman emperors, marked out wealth for its victim, and the guilt of being rich never failed to convict the accused of every other crime. This despotism continued for centuries. Despotism, as it has existed in modem Europe, has been ever full of jealousy and intrigue, a tool to the rage of courtiers, and the resentment of women. He that dared utter a word against tyrant, or endeavor to instruct his countrymen in their interests was never secure that the next moment would not conduct him to a dungeon. Here despotism wreaked her vengeance at leisure; and forty years of misery and solitude were sometimes insufficient to satiate her fury. Nor was this all. An usurpation that defied all the rules of justice was obliged to purchase its own safety by assisting tyranny through all its subordinate ranks. Hence the rights of nobility, of feudal vassalage, of primogeniture, of fines and inheritance. When the philosophy of law shall be properly understood, the true key to its spirit and history will probably be found, not, as some men, have fondly imagined, in a desire to secure the happiness of mankind, but in the venal compact by which superior tyrants have purchased the countenance and alliance of the inferior.

There is one point remaining in which anarchy and despotism are strongly contrasted with each other. Anarchy awakens thought, and diffuses energy and enterprise through the community, though it does not effect this in the best manner, as its fruits, forced into ripeness, must not be expected to have the vigorous stamina of true excellence. But, in despotism, mind is trampled into an equality of the most odious sort. Everything that promises greatness is destined to fall under the exterminating hand of suspicion and envy. In despotism, there is no encouragement to excellence. Mind delights to expatiate, in a field where everv species of distinction is within its reach. A scheme of policy under which all men are fixed in classes, or leveled with the dust, affords it no encouragement to pursue its career. The inhabitants of countries in which despotism is complete are frequently but a more vicious species of brutes. Oppression stimulates them to mischief and piracy and superior force of mind often displays itself only in deeper treachery, or more daring injustice.

One of the most interesting questions, in relation to anarchy, is that,of the result in which it may be expected to terminate. The possibilities as to this termination are as wide as the various schemes of society which the human imagination can conceive. Anarchy may and has terminated in despotism; and, in that case, the introduction of anarchy will only serve to afflict us with variety of evils. It may lead to a modification of despotism, a milder and more equitable government than that which had gone before. It cannot immediately lead to the best form of society, since it necessarily leaves mankind in a state of ferment, which requires a strong hand to control, and a slow and wary process to tranquilize.

The scene in which anarchy shall terminate principally depends upon the state of mind by which it has been preceded. All mankind were in a state of anarchy, that is, without government, previously to their being in a state of policy. It would not be difficult to find, in the history of almost every country, a period of anarchy. The people of England were in a state of anarchy immediately before the Restoration. The Roman people were in a state of anarchy at the moment of their secession to the Sacred Mountain. Hence it follows that anarchy is neither so good nor so ill a thing in relation to its consequences as it has sometimes been represented.

Little good can be expected from any species of anarchy that should subsist, for instance, among American savages. In order to anarchy being rendered a seed-plot of future justice, reflection and inquiry must have gone before, the regions of philosophy must have been penetrated, and political truth have opened her school to mankind. It is for this reason that the revolutions of the present age (for revolution is a species of anarchy) promise a more auspicious ultimate result than the revolutions of any former period. For the same reason, the more anarchy can be held at bay, the more fortunate will it be for mankind. Falsehood may gain by precipitating the crisis; but a genuine and enlightened philanthropy will wait, with unaltered patience, for the harvest of instruction. The arrival of that harvest may be slow, but it is perhaps infallible. If vigilance and wisdom be successful in their present opposition to anarchy, every benefit may ultimately be expected, untarnished with violence, and unstained with blood.

These observations are calculated to lead us to an accurate estimate of the mischiefs of anarchy, and, of consequence, to show the importance we are bound to attach to the exclusion of it. Government is frequently a source of peculiar evils; but an enlarged view will teach us to endure those evils which experience seems to evince are inseparable from the final benefit of mankind. From the savage state to the highest degree of civilization, the passage is long and arduous; and, if we aspire to the final result, we must submit to that portion of misery and vise which necessarily fills the space between. If we would free ourselves from these inconveniences, unless our attempt be both skillful and cautious, we shall be in danger, by our impatience, of producing worse evils than those we would escape. Now it is the first principle of morality and justice that directs us, where one of two evils is inevitable, to choose the least. Of consequence, the wise and just man, being unable, as yet, to introduce the form of society which his understanding approves, will contribute to the support of so much coercion as is necessary to exclude what is worse, anarchy.

If then constraint as the antagonist of constraint must in certain cases, and under temporary circumstances, be admitted, it is an interesting inquiry to ascertain which of the three ends of punishment, already enumerated, must be selected by the individuals by whom punishment is employed. And here it will be sufficient very briefly to recollect the reasonings that have been stated under each of these heads. It cannot be reformation. Reformation is improvement; and nothing can take place in a man worthy the name of improvement otherwise than by an appeal to the unbiassed judgment of his mind, and the essential feelings of his nature. If I would improve a man's character, who is there that knows not that the only effectual mode is by removing all extrinsic influences and incitements, by inducing him to observe, to reason and inquire, by leading him to the forming a series of sentiments that aretruly his own, and not slavishly modeled upon the sentiments of another?

To conceive that compulsion and punishment are the proper means of reformation is the sentiment of a barbarian; civilization and science are calculated to explode so ferocious an idea.It was once universally admitted and approved; it is now necessarily upon the decline.

Punishment must either ultimately succeed in imposing the sentiments it is employed to inculcate upon the mind of the sufferer; or it must forcibly alienate him against them.

The last of these can never be the intention of its employer, or have a tendency to justify its application. If it were so, punishment ought to follow upon deviations from vise, not deviations from virtue. Yet to alienate the mind of the sufferer from the individual that punishes, and from the sentiments he entertains, is perhaps the most common effect of punishment.

Let us suppose however that its effect is of an opposite nature; that it produces obedience, and even a change of opinion. What sort of a being does it leave the man thus reformed? His opinions are not changed upon evidence. His conversion is the result of fear. Servility has operated that within him which liberal inquiry and instruction were not able to do.

Punishment undoubtedly may change a man's behavior. It may render his external conduct beneficial from injurious, though it is no very promising expedient for that purpose. But it cannot improve his sentiments, or lead him to the form of right proceeding but by the basest and most despicable motives. It leaves him a slave, devoted to an exclusive self-interest, and actuated by fear, the meanest of the selfish passions.

But it may be said, 'however strong may be the reasons I am able to communicate to a man in order to his reformation, he may be restless and impatient of expostulation, and of consequence render it necessary that I should retain him by force, till I can properly instill these reasons into his mind'. It must be remembered that the idea here is not that of precaution, to prevent the mischiefs he might perpetrate, for that belongs to another of the three ends of punishment, that of restraint. But, separately from this idea, the argument is peculiarly weak. If the reasons I have to communicate be of an energetic and impressive nature if they stand forward perspicuous and distinct in my own mind, it will be strange if they do not, at the outset, excite curiosity and attention in him to whom they are addressed. It is my duty to choose a proper reason to communicate them, and not to betray the cause of justice by an ill-timed impatience. This prudence I should infallibly exercise if my object were to obtain something interesting to myself; why should I be less quick-sighted when I purpose the benefit of another? It is a miserable way of preparing a man for conviction to compel him by violence to hear an expostulation which he is eager to avoid. - These arguments prove, not that we should lose sight of reformation, if punishment for any other reason appear to be necessary; but that reformation cannot reasonably be made the object of punishment.

Punishment for the sake of example is a theory, that can never be justly maintained. The suffering proposed to be inflicted, considered absolutely, is either right or wrong. If it be right, it should be inflicted for its intrinsic recommendations. If it be wrong, what sort of example does it display? To do a thing for the sake of example is, in other words, to do a thing today in order to prove that I will do a similar thing tomorrow. This must always be a subordinate consideration. No argument has been so grossly abused as this of example. We found it, under the subject of war, ² employed to prove the propriety of my doing a thing otherwise wrong, in order to convince the opposite party that I should, when occasion offered, do something else that was right. He will display the best example, who carefully studies the principles of justice, and assiduously practices them. A better effect will be produced in human society by my conscientious adherence to them than by my anxiety to create a specific expectation respecting my future conduct. This argument will be still further enforced if we recollect what has already been said respecting the inexhaustible differences of different cases, and the impossibility of reducing them to general rules.³

The third object of punishment according to the enumeration already made is restraint. If punishment be, in any case, to be admitted, this is the only object it can reasonably propose to itself. The serious objections to which, even in this point of view, it is liable have been stated in another stage of the inquiry ⁴: the amount of the necessity tending to supersede these objections has also been considered. The subject of this chapter is of great importance in proportion to the length of time that may possibly elapse before any considerable part of mankind shall be persuaded to exchange the present complexity of political institution for a mode which promises to supersede the necessity of punishment. It is highly unworthy of the cause of truth, to suppose that, during this interval, I have no active duties to perform, that I am not obliged to cooperate for the present welfare of the community, as well as for its future regeneration. The temporary obligation that arises out of this circumstance exactly corresponds with what was formerly delivered on the subject of duty. Duty is the best possible application of a given power to the promotion of the general good. ⁵ But my power depends upon the disposition of the men by whom I am surrounded. If I were enlisted in an army of cowards, it might be my duty to retreat, though, absolutely considered, it should have been the duty of the army to come to blows. Under every possible circumstance, it Is my duty to advance the general good, by the best means which the circumstances under which I am placed will admit.

Footnotes

¹Book V, Chap. XXII, p. 544
²Book V, Chap. XVI, p. 511
³Chap. IV
⁴Chap. III
⁵Book II, Chap. IV