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Definition of punishment. -- Nature of crime. -- Retributive justice not independent and absolute -- Not to be vindicated from the system of nature. -- Desert a chimerical property. -- Conclusion.{687} 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 {688} the internal affairs of such associations are of infinitely greater importance than their external1. It has appeared that the action of society in conferring rewards and superintending opinion is of pernicious effect2. Hence it follows that government, or the action of the 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 an innocent 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 the exertion of force for some moral purpose, comes within the import of the word punishment. Punishment is {689} generally 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 therefore, in the strict import of the word, can only be a deduction from the hypothesis of free-will, and must be false, if human actions be necessary. Mind, as was sufficiently apparent when we treated of that subject3, 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 {690} of association to the exiting 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 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 at all 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 here 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 a proposition that few reasonable and reflecting minds will be found inclined to reject it. Why do I inflict suffering on another? If neither for his own benefit nor the benefit of others, can that 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 {691} himself or others? 'The reason the mind 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 ourselves two beings, each of them solitary, but the first virtuous and the second vicious, the first inclined to the highest acts of benevolence, if his situation were changed for the social, the second to malignity, tyranny and injustice, do we not feel that the first is entitled to felicity in preference to the second?' If there be any difficulty 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 is 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 {692} render social. It is difficult for us to separate even in 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 the question of a solitary being will always be extravagant and unintelligible, but will never convince.
It has sometimes been alledged that the very course of nature has annexed suffering to vice, and has thus led us to the idea of punishment. Arguments of this sort must 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 mal-treat 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 of the whole, to entitle us to form our formal principles upon an imitation of what we conceive to be the course of nature.
It is an extreme error to suppose that the course of nature is something arbitrarily adjusted by a designing mind. Let us once conceive a system of percipient beings to exist, and all that we know of the history of man follows from that conception as so many inevitable consequences. Mind beginning to exist must have begun from ignorance, must have received idea after {693} idea, must have been liable to erroneous conclusions from imperfect conceptions. We say that the system of the universe has annexed happiness to virtue and pain to vice. We should speak more accurately if we said, that virtue would not be virtue nor vice be vice, if this connection could cease. The office of the principle, whether mind or whatever else, to which the universe owes its existence, is less that of fabricating than conducting; is not the creation of truth, and the connecting ideas and propositions which had no original relation to each other, but the rendering truth, the nature of which is unalterable, an active and vivifying principle. It cannot therefore be good reasoning to say, the system of nature annexes unhappiness to vice, or in other words vice brings its own punishment along with it, therefore it would be unjust in us not by a positive interference to render that punishment double.
Thus it appears, whether we enter philosophically into the principle of human actions, or merely analyse the ideas of rectitude and justice which have the universal consent of mankind, that, accurately speaking, there is no such thing as desert. It cannot be just that we should inflict suffering on any man, except so far as it tends to good. Hence it follows that the strict acceptation of the word punishment 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 {694} 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 wildest conceptions of untutored barbarism. Every man upon whom discipline is administered, is to be considered as to the rationale of this discipline as innocent. Xerxes was not more unreasonable when he lashed the waves of the sea, than that man would be who inflicted suffering on his fellow, from a view to the past, and not from a view to the future.
It is of the utmost importance that we should bear these ideas constantly it mind during our whole examination of the theory of punishment. This theory would in the past transactions of mankind have been totally different, if the had divested themselves of all emotions of anger and resentment, if they had considered the man who torments another for what he has done, as upon par with the child who beats the table; if they had figured to their imagination, and then properly estimated, the man, who should shut up in prison some atrocious criminal, and afterwards torture him at stated periods, merely in consideration of the abstract congruity of crime and punishment, without any possible {695} benefit to others or to himself; if they had regarded infliction as that which was to be regulated solely by the dispassionate calculation of the future, without suffering the past, in itself considered, for a moment to enter into the accounts.