POLITICAL JUSTICE

Mr. Locke begins his celebrated Treatise of Government with a refutation of the patriarchal scheme of sir Robert Filmer; and, having thus cleared his ground, proceeds to observe, that "he, that will not give just occasion to think that all government in the world is the product only of force and violence, and that men live together by no other rules but that of beasts, must of necessity find out another rise of government, and another original of political power."[1] Accordingly he proceeds through the greater part of his treatise to reason abstractedly upon the probable history of the early ages of mankind, and concludes that no legitimate government could be built upon any other foundation than that of an original contract.

It is to be suspected that this great man, friend as he was to the liberty and the interests of mankind, intrepid and sagacious in his search after truth, has been guilty of an oversight in the first step of the investigation.

There are two modes, according to which we may enquire into the origin of society and government. We may either examine them historically, that is, consider in what manner they have or ought to have begun, as Mr. Locke has done; or we may examine them philosophically, that is, consider the moral principles upon which they depend. The first of these subjects is not without its use; but the second is of a higher order and more essential importance. The first is a question of form; the second of substance. It would be of trivial consequence practically considered, from what source any form of society flowed, and by what mode its principles were sanctioned, could we be always secure of their conformity to the dictates of truth and justice.

It is farther necessary before we enter upon the subject carefully to distinguish between society and government. Men associated at first for the sake of mutual assistance. They did not foresee that any restraint would be necessary, to regulate the conduct of individual members of the society, towards each other, or towards the whole. The necessity of restraint grew out of the errors and perverseness of a few. An acute writer has expressed this idea with peculiar felicity. "Society and government," says he, "are different in themselves, and have different origins. Society is produced by our wants, and government by our wickedness. Society is in every state a blessing; government even in its best state but a necessary evil."[2]

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NOTES

[1] Book II. Chap. i. § 1.

[2] Common Sense, p. 1.

From what has been said it appears, that the subject of our present enquiry is strictly speaking a department of the science of morals. Morality is the source from which its fundamental axioms must be drawn, and they will be made somewhat clearer in the present instance, if we assume the term justice as a general appellation for all moral duty.

That this appellation is sufficiently expressive of the subject will appear, if we consider for a moment mercy, gratitude, temperance, or any of those duties which in looser speaking are contradistinguished from justice. Why should I pardon this criminal, remunerate this favour, abstain from this indulgence? If it partake of the nature of morality, it must be either right or wrong, just or unjust. It must tend to the benefit of the individual, either without intrenching upon, or with actual advantage to the mass of individuals. Either way it benefits the whole, because individuals are parts of the whole. Therefore to do it is just, and to forbear it is unjust. If justice have any meaning, it is just that I should contribute every thing in my power to the benefit of the whole.

Considerable light will probably be thrown upon our investigation, if, quitting for the present the political view, we examine justice merely as it exists among individuals. Justice is a rule of conduct originating in the connection of one percipient being with another. A comprehensive maxim which has been laid down upon the subject is, "that we should love our neighbour as ourselves." But this maxim, though possessing considerable merit as a popular principle, is not modelled with the strictness of philosophical accuracy.

In a loose and general view I and my neighbour are both of us men; and of consequence entitled to equal attention. But in reality it is probable that one of us is a being of more worth and importance than the other. A man is of more worth than a beast; because, being possessed of higher faculties, he is capable of a more refined and genuine happiness. In the same manner the illustrious archbishop of Cambray was of more worth than his chambermaid, and there are few of us that would hesitate to pronounce, if his palace were in flames, and the life of only one of them could be preserved, which of the two ought to be preferred.

But there is another ground of preference, beside the private consideration of one of them being farther removed from the state of a mere animal. We are not connected with one or two percipient beings, but with a society, a nation, and in some sense with the whole family of mankind. Of consequence that life ought to be preferred which will be most conducive to the general good. In saving the life of Fenelon, suppose at the moment when he was conceiving the project of his immortal Telemachus, I should be promoting the benefit of thousands, who have been cured by the perusal of it of some error, vice and consequent unhappiness. Nay, my benefit would extend farther than this, for every individual thus cured has become a better member of society, and has contributed in his turn to the happiness, the information and improvement of others.

Supposing I had been myself the chambermaid, I ought to have chosen to die, rather than that Fenelon should have died. The life of Fenelon was really preferable to that of the chambermaid. But understanding is the faculty that perceives the truth of this and similar propositions; and justice is the principle that regulates my conduct accordingly. It would have been just in the chambermaid to have preferred the archbishop to herself. To have done otherwise would have been a breach of justice.

Supposing the chambermaid had been my wife, my mother or my benefactor. This would not alter the truth of the proposition. The life of Fenelon would still be more valuable than that of the chambermaid; and justice, pure, unadulterated justice, would still have preferred that which was most valuable. Justice would have taught me to save the life of Fenelon at the expence of the other. What magic is there in the pronoun "my," to overturn the decisions of everlasting truth? My wife or my mother may be a fool or a prostitute, malicious, lying or dishonest. If they be, of what consequence is it that they are mine?

"But my mother endured for me the pains of child bearing, and nourished me in the helplessness of infancy." When she first subjected herself to the necessity of these cares, she was probably influenced by no particular motives of benevolence to her future offspring. Every voluntary benefit however entitles the bestower to some kindness and retribution. But why so? Because a voluntary benefit is an evidence of benevolent intention, that is, of virtue. It is the disposition of the mind, not the external action, that entitles to respect. But the merit of this disposition is equal, whether the benefit was conferred upon me or upon another. I and another man cannot both be right in preferring our own individual benefactor, for no man can be at the same time both better and worse than his neighbour. My benefactor ought to be esteemed, not because he bestowed a benefit upon me, but because he bestowed it upon a human being. His desert will be in exact proportion to the degree, in which that human being was worthy of the distinction conferred. Thus every view of the subject brings us back to the consideration of my neighbour's moral worth and his importance to the general weal, as the only standard to determine the treatment to which he is entitled. Gratitude therefore, a principle which has so often been the theme of the moralist and the poet, is no part either of justice or virtue. By gratitude I understand a sentiment, which would lead me to prefer one man to another, from some other consideration than that of his superior usefulness or worth: that is, which would make something true to me (for example this preferableness), which cannot be true to another man, and is not true in itself.[1]

It may be objected, "that my relation, my companion, or my benefactor will of course in many instances obtain an uncommon portion of my regard: for, not being universally capable of discriminating the comparative worth of different men, I shall inevitably judge most favourably of him, of whose virtues I have received the most unquestionable proofs; and thus shall be compelled to prefer the man of moral worth whom I know, to another who may possess, unknown to me, an essential superiority."

This compulsion however is founded only in the present imperfection of human nature. It may serve as an apology for my error, but can never turn error into truth. It will always remain contrary to the strict and inflexible decisions of justice. The difficulty of conceiving this is owing merely to our confounding the disposition from which an action is chosen, with the action itself. The disposition, that would prefer virtue to vice and a greater degree of virtue to a less, is undoubtedly a subject of approbation; the erroneous exercise of this disposition by which a wrong object is selected, if unavoidable, is to be deplored, but can by no colouring and under no denomination be converted into right.[2]

It may in the second place be objected, "that a mutual commerce of benefits tends to increase the mass of benevolent action, and that to increase the mass of benevolent action is to contribute to the general good." Indeed! Is the general good promoted by falshood, by treating a man of one degree of worth, as if he had ten times that worth? or as if he were in any degree different from what he really is? Would not the most beneficial consequences result from a different plan; from my constantly and carefully enquiring into the deserts of all those with whom I am connected, and from their being sure, after a certain allowance for the fallibility of human judgment, of being treated by me exactly as they deserved? Who can tell what would be the effects of such a plan of conduct universally adopted?

There seems to be more truth in the argument, derived chiefly from the unequal distribution of property, in favour of my providing in ordinary cases for my wife and children, my brothers and relations, before I provide for strangers. As long as providing for individuals belongs to individuals, it seems as if there must be a certain distribution of the class needing superintendence and supply among the class affording it, that each man may have his claim and resource. But this argument, if admitted at all, is to be admitted with great caution. It belongs only to ordinary cases; and cases of a higher order or a more urgent necessity will perpetually occur, in competition with which these will be altogether impotent. We must be severely scrupulous in measuring out the quantity of supply; and, with respect to money in particular, must remember how little is yet understood of the true mode of employing it for the public benefit.

Having considered the persons with whom justice is conversant, let us next enquire into the degree in which we are obliged to consult the good of others. And here I say, that it is just that I should do all the good in my power. Does any person in distress apply to me for relief? It is my duty to grant it, and I commit a breach of duty in refusing. If this principle be not of universal application, it is because, in conferring a benefit upon an individual, I may in some instances inflict an injury of superior magnitude upon myself or society. Now the same justice, that binds me to any individual of my fellow men, binds me to the whole. If, while I confer a benefit upon one man, it appear, in striking an equitable balance, that I am injuring the whole, my action ceases to be right and becomes absolutely wrong. But how much am I bound to do for the general weal, that is, for the benefit of the individuals of whom the whole is composed? Every thing in my power. What to the neglect of the means of my own existence? No; for I am myself a part of the whole. Beside, it will rarely happen but that the project of doing for others every thing in my power, will demand for its execution the preservation of my own existence; or in other words, it will rarely happen but that I can do more good in twenty years than in one. If the extraordinary case should occur in which I can promote the general good by my death, more than by my life, justice requires that I should be content to die. In all other cases, it is just that I should be careful to maintain my body and my mind in the utmost vigour, and in the best condition for service.[3]

I will suppose for example that it is right for one man to possess a greater portion of property than another, either as the fruit of his industry, or the inheritance of his ancestors. Justice obliges him to regard this property as a trust, and calls upon him maturely to consider in what manner it may best be employed for the increase of liberty, knowledge and virtue. He has no right to dispose of a shilling of it at the will of his caprice. So far from being entitled to well earned applause for having employed some scanty pittance in the service of philanthropy, he is in the eye of justice a delinquent if he withhold any portion from that service. Nothing can be more incontrovertible. Could that portion have been better or more worthily employed? That it could is implied in the very terms of the proposition. Then it was just it should have been so employed.—In the same manner as my property, I hold my person as a trust in behalf of mankind. I am bound to employ my talents, my understanding, my strength and my time for the production of the greatest quantity of general good. Such are the declarations of justice, so great is the extent of my duty.

But justice is reciprocal. If it be just that I should confer a benefit, it is just that another man should receive it, and, if I withhold from him that to which he is entitled, he may justly complain. My neighbour is in want of ten pounds that I can spare. There is no law of political institution that has been made to reach this case, and to transfer this property from me to him. But in the eye of simple justice, unless it can be shewn that the money can be more beneficently employed, his claim is as complete, as if he had my bond in his possession, or had supplied me with goods to the amount.[4]

To this it has sometimes been answered, "that there is more than one person, that stands in need of the money I have to spare, and of consequence I must be at liberty to bestow it as I please." I answer, if only one person offer himself to my knowledge or search, to me there is but one. Those others that I cannot find belong to other rich men to assist (rich men, I say, for every man is rich, who has more money than his just occasions demand), and not to me. If more than one person offer, I am obliged to balance their fitness, and conduct myself accordingly. It is scarcely possible to happen that two men shall be of exactly equal fitness, or that I shall be equally certain of the fitness of the one as of the other.

It is therefore impossible for me to confer upon any man a favour, I can only do him a right. Whatever deviates from the law of justice, even I will suppose in the too much done in favour of some individual or some part of the general whole, is so much subtracted from the general stock, is so much of absolute injustice.

The inference most clearly afforded by the preceding reasonings, is the competence of justice as a principle of deduction in all cases of moral enquiry. The reasonings themselves are rather of the nature of illustration and example, and any error that may be imputed to them in particulars, will not invalidate the general conclusion, the propriety of applying moral justice as a criterion in the investigation of political truth.

Society is nothing more than an aggregation of individuals. Its claims and its duties must be the aggregate of their claims and duties, the one no more precarious and arbitrary than the other. What has the society a right to require from me? The question is already answered: every thing that it is my duty to do. Any thing more? Certainly not. Can they change eternal truth, or subvert the nature of men and their actions? Can they make it my duty to commit intemperance, to maltreat or assassinate my neighbour?—Again. What is it that the society is bound to do for its members? Every thing that can contribute to their welfare. But the nature of their welfare is defined by the nature of mind. That will most contribute to it, which enlarges the understanding, supplies incitements to virtue, fills us with a generous consciousness of our independence, and carefully removes whatever can impede our exertions.

Should it be affirmed, "that it is not in the power of any political system to secure to us these advantages," the conclusion I am drawing will still be incontrovertible. It is bound to contribute every thing it is able to these purposes, and no man was ever yet found hardy enough to affirm that it could do nothing. Suppose its influence in the utmost degree limited, there must be one method approaching nearer than any other to the desired object, and that method ought to be universally adopted. There is one thing that political institutions can assuredly do, they can avoid positively counteracting the true interests of their subjects. But all capricious rules and arbitrary distinctions do positively counteract them. There is scarcely any modification of society but has in it some degree of moral tendency. So far as it produces neither mischief nor benefit, it is good for nothing. So far as it tends to the improvement of the community, it ought to be universally adopted.

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NOTES

[1] This argument respecting gratitude is stated with great clearness in an Essay on the Nature of True Virtue, by the Rev. Jonathan Edwards. 12mo. Dilly.

[2] See this subject more copiously treated in the following chapter.

[3] Vide Appendix to this chapter, No. I.

[4] A spirited outline of these principles is sketched in Swift's Sermon on Mutual Subjection.

This reasoning will explain to us the long disputed case of suicide. "Have I a right under any circumstances to destroy myself in order to escape from pain or disgrace?" Probably not. It is perhaps impossible to imagine a situation, that shall exclude the possibility of future life, vigour and usefulness. The motive assigned for escape is eminently trivial, to avoid pain, which is a small inconvenience; or disgrace, which is an imaginary evil. The example of fortitude in enduring them, if there were no other consideration, would probably afford a better motive for continuing to live.

"Is there then no case in which suicide is a virtue?" What shall we think of the reasoning of Lycurgus, who, when he determined upon a voluntary death, remarked, "that all the faculties a rational being possessed were capable of a moral use, and that, after having spent his life in the service of his country, a man ought, if possible, to render his death a source of additional benefit?" This was the motive of the suicide of Codrus, Leonidas and Decius. If the same motive prevailed in the much admired suicide of Cato, if he were instigated by reasons purely benevolent, it is impossible not to applaud his intention, even if he were mistaken in the application.

The difficulty is to decide in any instance whether the recourse to a voluntary death can overbalance the usefulness I may exert in twenty or thirty years of additional life. But surely it would be precipitate to decide that there is no such instance. There is a proverb which affirms, "that the blood of the martyrs is the seed of the church." It is commonly supposed that Junius Brutus did right in putting his sons to death in the first year of the Roman republic, and that this action contributed more than any other cause, to generate that energy and virtue for which his country was afterwards so eminently distinguished. The death of Cato produced an effect somewhat similar to this. It was dwelt on with admiration by all the lovers of virtue under the subsequent tyrants of Rome. It seemed to be the lamp from which they caught the sacred flame. Who can tell how much it has contributed to revive that flame in after ages, when it seemed to have been so long extinct?

Let it be observed that all martyrs are suicides by the very signification of the term. They die for a testimony; that is, they have a motive for dying. But motives respect only our own voluntary acts, not the violence put upon us by another.

It may be proper in this place to bestow a moment's consideration upon the trite, but very important case of duelling. A very short reflection will suffice to set it in its true light.

This detestable practice was originally invented by barbarians for the gratification of revenge. It was probably at that time thought a very happy project for reconciling the odiousness of malignity with the gallantry of courage.

But in this light it is now generally given up. Men of the best understanding who lend it their sanction, are unwillingly induced to do so, and engage in single combat merely that their reputation may sustain no slander.

Which of these two actions is the truest test of courage: the engaging in a practice which our judgment disapproves, because we cannot submit to the consequences of following that judgment; or the doing what we believe to be right, and chearfully encountering all the consequences that may be annexed to the practice of virtue? With what patience can a man of virtue think of cutting off the life of a fellow mortal, or of putting an abrupt close to all the generous projects he may himself conceive for the benefit of others, merely because he has not firmness enough to awe impertinence and falshood into silence?

"But the refusing a duel is an ambiguous action. Cowards may pretend principle to shelter themselves from a danger they dare not meet."

This is partly true and partly false. There are few actions indeed that are not ambiguous, or that with the same general outline may not proceed from different motives. But the manner of doing them will sufficiently shew the principle from which they spring.

He, that would break through an universally received custom because he believes it to be wrong, must no doubt arm himself with fortitude. The point in which we chiefly fail, is in not accurately understanding our own intentions, and taking care beforehand to free ourselves from any alloy of weakness and error. He, who comes forward with no other idea in his mind but that of rectitude, and who expresses, with the simplicity and firmness which full conviction never fails to inspire, the views with which he is impressed, is in no danger of being mistaken for a coward. If he hesitate, it is because he has not an idea perfectly clear of the sentiment he intends to convey. If he be in any degree embarrassed, it is because he has not a feeling sufficiently generous and intrepid of the guilt of the action in which he is pressed to engage.

If there be any meaning in courage, its first ingredient must be the daring to speak the truth at all times, to all persons, and in every possible situation. What is it but the want of courage that should prevent me from saying, "Sir, I ought to refuse your challenge. What I ought to do, that I dare do. Have I injured you? I will readily and without compulsion repair my injustice to the uttermost mite. Have you misconstrued me? State to me the particulars, and doubt not that what is true I will make appear to be true. Thus far I will go. But, though I should be branded for a coward by all mankind, I will not repair to a scene of deliberate murder. I will not do an act that I know to be flagitious. I will exercise my judgment upon every proposition that comes before me; the dictates of that judgment I will speak; and upon them I will form my conduct." He that holds this language with a countenance in unison with his words, will never be suspected of acting from the impulse of fear.

There is a difficulty of considerable magnitude as to the subject of the preceding chapter, founded upon the difference which may exist between abstract justice and my apprehensions of justice. When I do an act, wrong in itself, but which as to all the materials of judging extant to my understanding appears to be right, is my conduct virtuous or vicious?

Certain moralists have introduced a distinction upon this head between absolute and practical virtue. "There is one species of virtue," they say, "which rises out of the nature of things and is immutable, and another which rises out of the views extant to my understanding. Thus for example suppose, I ought to worship Jesus Christ; but, having been bred in the religion of Mahomet, I ought to adhere to that religion, as long as its evidences shall appear to me conclusive. I am impannelled upon a jury to try a man arraigned for murder, and who is really innocent. Abstractedly considered, I ought to acquit him. But I am unacquainted with his innocence, and evidence is adduced such as to form the strongest presumption of his guilt. Demonstration in such cases is not to be attained; I am obliged in every concern of human life to act upon presumption; I ought therefore to convict him."

It may be doubted however whether any good purpose is likely to be answered by employing the terms of abstract science in this versatile and uncertain manner. Morality is, if any thing can be, fixed and immutable; and there must surely be some strange deception that should induce us to give to an action eternally and unchangeably wrong, the epithets of rectitude, duty and virtue.

Nor have these moralists been thoroughly aware to what extent this admission would carry them. The human mind is incredibly subtle in inventing an apology for that to which its inclination leads. Nothing is so rare as pure and unmingled hypocrisy. There is no action of our lives which we were not ready at the time of adopting it to justify, unless so far as we were prevented by mere indolence and unconcern. There is scarcely any justification which we endeavour to pass upon others, which we do not with tolerable success pass upon ourselves. The distinction therefore which is here set up would go near to prove that every action of every human being is entitled to the appellation of virtuous.

There is perhaps no man that cannot recollect the time when he secretly called in question the arbitrary division of property established in human society, and felt inclined to appropriate to his use any thing the possession of which appeared to him desirable. It is probably in some such way that men are usually influenced in the perpetration of robbery. They persuade themselves of the comparative inutility of the property to its present possessor, and the inestimable advantage that would attend it in their hands. They believe that the transfer ought to be made. It is of no consequence that they are not consistent in these views, that the impressions of education speedily recur to their minds, and that in a season of adversity they readily confess the wickedness of their proceeding. It is not less true that they did what at the moment they thought to be right.

But there is another consideration that seems still more decisive of the subject before us. The worst actions, the most contrary to abstract justice and utility, have frequently been done from the most conscientious motives. Clement, Ravaillac, Damiens and Gerard had their minds deeply penetrated with anxiety for the eternal welfare of mankind. For these objects they sacrificed their ease, and chearfully exposed themselves to tortures and death. It was benevolence probably that contributed to light the fires of Smithfield, and point the daggers of Saint Bartholomew. The inventors of the Gunpowder Treason were in general men remarkable for the sanctity of their lives and the severity of their manners. It is probable indeed, that some ambitious views, and some sentiments of hatred and abhorrence mixed with the benevolence and integrity of these persons. It is probable that no wrong action was ever committed from views entirely pure. But the deception they put upon themselves might nevertheless be complete. At all events their opinions upon the subject could not alter the real nature of the action.

The true solution of the question lies in observing, that the disposition with which an action is adopted is one thing, and the action itself another. A right action may be done from a wrong disposition; in that case we approve the action, but condemn the actor. A wrong action may be done from a right disposition; in that case we condemn the action, but approve the actor. If the disposition by which a man is governed have a systematical tendency to the benefit of his species, he cannot fail to obtain our esteem, however mistaken he may be in his conduct.

But what shall we say to the duty of a man under these circumstances? Calvin, we will suppose, was clearly and conscientiously persuaded that he ought to burn Servetus. Ought he to have burned him or not? "If he burned him, he did an action detestable in its own nature; if he refrained, he acted in opposition to the best judgment of his own understanding as to a point of moral obligation." It is absurd however to say, that it was in any sense his duty to burn him. The most that can be admitted is, that his disposition was virtuous, and that in the circumstances in which he was placed an action greatly to be deplored flowed from that disposition by invincible necessity.

Shall we say then that it was the duty of Calvin, who did not understand the principles of toleration, to act upon a truth of which he was ignorant? Suppose that a person is to be tried at York next week for murder, and that my evidence would acquit him. Shall we say that it was my duty to go to York, though I knew nothing of the matter? Upon the same principles we might affirm that it is my duty to go from London to York in half an hour, as the trial will come on within that time; the impossibility not being more real in one case than in the other. Upon the same principles we might affirm, that it is my duty to be impeccable, omniscient and almighty.

Duty is a term the use of which seems to be to describe the mode in which any being may best be employed for the general good. It is limited in its extent by the extent of the capacity of that being. Now capacity varies in its idea in proportion as we vary our view of the subject to which it belongs. What I am capable of, if you consider me merely as a man, is one thing; what I am capable of as a man of a deformed figure, of weak understanding, of superstitious prejudices, or as the case may happen, is another. So much cannot be expected of me under these disadvantages, as if they were absent. But, if this be the true definition of duty, it is absurd to suppose in any case that an action injurious to the general welfare can be classed in the rank of duties.

To apply these observations to the cases that have been stated. Ignorance, so far as it goes, completely annihilates capacity. As I was uninformed of the trial at York, I could not be influenced by any consideration respecting it. But it is absurd to say that it was my duty to neglect a motive with which I was unacquainted. If you alledge, "that Calvin was ignorant of the principles of toleration, and had no proper opportunity to learn them," it follows that in burning Servetus he did not violate his duty, but it does not follow that it was his duty to burn him. Upon the supposition here stated duty is silent. Calvin was unacquainted with the principles of justice, and therefore could not practise them. The duty of no man can exceed his capacity; but then neither can in any case an act of injustice be of the nature of duty.

There are certain inferences that flow from this view of the subject, which it may be proper to mention. Nothing is more common than for individuals and societies of men to alledge that they have acted to the best of their judgment, that they have done their duty, and therefore that their conduct, even should it prove to be mistaken, is nevertheless virtuous. This appears to be an error. An action, though done with the best intention in the world, may have nothing in it of the nature of virtue. In reality the most essential part of virtue consists in the incessantly seeking to inform ourselves more accurately upon the subject of utility and right. Whoever is greatly misinformed respecting them, is indebted for his error to a defect in his philanthropy and zeal.

Secondly, since absolute virtue may be out of the power of a human being, it becomes us in the mean time to lay the greatest stress upon a virtuous disposition, which is not attended with the same ambiguity. A virtuous disposition is of the utmost consequence, since it will in the majority of instances be productive of virtuous actions; since it tends, in exact proportion to the quantity of virtue, to increase our discernment and improve our understanding; and since, if it were universally propagated, it would immediately lead to the great end of virtuous actions, the purest and most exquisite happiness of intelligent beings. But a virtuous disposition is principally generated by the uncontrolled exercise of private judgment, and the rigid conformity of every man to the dictates of his conscience.

The equality of mankind is either physical or moral. Their physical equality may be considered either as it relates to the strength of the body or the faculties of the mind.

This part of the subject has been exposed to cavil and objection. It has been said, "that the reverse of this equality is the result of our experience. Among the individuals of our species we actually find that there are not two alike. One man is strong and another weak. One man is wise and another foolish. All that exists in the world of the inequality of conditions is to be traced to this as their source. The strong man possesses power to subdue, and the weak stands in need of an ally to protect. The consequence is inevitable: the equality of conditions is a chimerical assumption, neither possible to be reduced into practice, nor desirable if it could be so reduced."

Upon this statement two observations are to be made. First, this inequality was in its origin infinitely less than it is at present. In the uncultivated state of man diseases, effeminacy and luxury were little known, and of consequence the strength of every one much more nearly approached to the strength of his neighbour. In the uncultivated state of man the understandings of all were limited, their wants, their ideas and their views nearly upon a level. It was to be expected that in their first departure from this state great irregularities would introduce themselves; and it is the object of subsequent wisdom and improvement to mitigate these irregularities.

Secondly, notwithstanding the incroachments that have been made upon the equality of mankind, a great and substantial equality remains. There is no such disparity among the human race as to enable one man to hold several other men in subjection, except so far as they are willing to be subject. All government is founded in opinion. Men at present live under any particular form, because they conceive it their interest to do so. One part indeed of a community or empire may be held in subjection by force; but this cannot be the personal force of their despot; it must be the force of another part of the community, who are of opinion that it is their interest to support his authority. Destroy this opinion, and the fabric which is built upon it falls to the ground. It follows therefore that all men are essentially independent.—So much for the physical equality.

The moral equality is still less open to reasonable exception. By moral equality I understand the propriety of applying one unalterable rule of justice to every case that may arise. This cannot be questioned but upon arguments that would subvert the very nature of virtue. "Equality," it has been affirmed, "will always be an unintelligible fiction, so long as the capacities of men shall be unequal, and their pretended claims have neither guarantee nor sanction by which they can be inforced."[1] But surely justice is sufficiently intelligible in its own nature, abstracted from the consideration whether it be or be not reduced into practice. Justice has relation to beings endowed with perception, and capable of pleasure and pain. Now it immediately results from the nature of such beings, independently of any arbitrary constitution, that pleasure is agreeable and pain odious, pleasure to be desired and pain to be obviated. It is therefore just and reasonable that such beings should contribute, so far as it lies in their power, to the pleasure and benefit of each other. Among pleasures some are more exquisite, more unalloyed and less precarious than others. It is just that these should be preferred.

From these simple principles we may deduce the moral equality of mankind. We are partakers of a common nature, and the same causes that contribute to the benefit of one contribute to the benefit of another. Our senses and faculties are of the same denomination. Our pleasures and pains will therefore be the same. We are all of us endowed with reason, able to compare, to judge and to infer. The improvement therefore which is to be desired for the one is to be desired for the other. We shall be provident for ourselves and useful to each other, in proportion as we rise above the atmosphere of prejudice. The same independence, the same freedom from any such restraint, as should prevent us from giving the reins to our own understanding, or from uttering upon all occasions whatever we think to be true, will conduce to the improvement of all. There are certain opportunities and a certain situation most advantageous to every human being, and it is just that these should be communicated to all, as nearly at least as the general economy will permit.

There is indeed one species of moral inequality parallel to the physical inequality that has been already described. The treatment to which men are entitled is to be measured by their merits and their virtues. That country would not be the seat of wisdom and reason, where the benefactor of his species was considered in the same point of view as their enemy. But in reality this distinction, so far from being adverse to equality in any tenable sense, is friendly to it, and is accordingly known by the appellation of equity, a term derived from the same origin. Though in some sense an exception, it tends to the same purpose to which the principle itself is indebted for its value. It is calculated to infuse into every bosom an emulation of excellence. The thing really to be desired is the removing as much as possible arbitrary distinctions, and leaving to talents and virtue the field of exertion unimpaired. We should endeavour to afford to all the same opportunities and the same encouragement, and to render justice the common interest and choice.

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NOTES

[1] "On a dit--que nous avions tous les mêmes droits. S'ignore ce que c'est que les mêmes droits, où il y a inégalité de talens on de force, & nulle garantie, nulle sanction." Raynal, Revolution d'Amerique, p. 34.

There is no subject that has been discussed with more eagerness and pertinacity than the rights of man. Has he any rights, or has he none? Much may plausibly be alledged on both sides of this question; and in the conclusion those reasoners appear to express themselves with the greatest accuracy who embrace the negative. There is nothing that has been of greater disservice to the cause of truth, than the hasty and unguarded manner in which its advocates have sometimes defended it: and it will be admitted to be peculiarly unfortunate, if the advocates on one side of this question should be found to have the greatest quantity of truth, while their adversaries have expressed themselves in a manner more consonant to reason and the nature of things. Where the question has been so extremely darkened by an ambiguous use of terms, it may at any rate be desirable to try, whether, by a patient and severe investigation of the first principles of political society, it may be placed in a light considerably different from the views of both parties.

Political society, as has already been observed, is founded in the principles of morality and justice. It is impossible for intellectual beings to be brought into coalition and intercourse, with out a certain mode of conduct, adapted to their nature and connection, immediately becoming a duty incumbent on the parties concerned. Men would never have associated, if they had not imagined that in consequence of that association they would mutually conduce to the advantage and happiness of each other. This is the real purpose, the genuine basis of their intercourse; and, as far as this purpose is answered, so far does society answer the end of its institution.

There is only one postulate more, that is necessary to bring us to a conclusive mode of reasoning upon this subject. Whatever is meant by the term right, for it will presently appear that the sense of the term itself has never been clearly understood, there can neither be opposite rights, nor rights and duties hostile to each other. The rights of one man cannot clash with or be destructive of the rights of another; for this, instead of rendering the subject an important branch of truth and morality, as the advocates of the rights of man certainly understand it to be, would be to reduce it to a heap of unintelligible jargon and inconsistency. If one man have a right to be free, another man cannot have a right to make him a slave; if one man have a right to inflict chastisement upon me, I cannot have a right to withdraw myself from chastisement; if my neighbour have a right to a sum of money in my possession, I cannot have a right to retain it in my pocket.—It cannot be less incontrovertible, that I have no right to omit what my duty prescribes.

From hence it inevitably follows that men have no rights. By right, as the word is employed in this subject, has always been understood discretion, that is, a full and complete power of either doing a thing or omitting it, without the person's becoming liable to animadversion or censure from another, that is, in other words, without his incurring any degree of turpitude or guilt. Now in this sense I affirm that man has no rights, no discretionary power whatever.

It is commonly said, "that a man has a right to the disposal of his fortune, a right to the employment of his time, a right to the uncontrolled choice of his profession or pursuits." But this can never be consistently affirmed till it can be shewn that he has no duties, prescribing and limiting his mode of proceeding in all these respects. My neighbour has just as much right to put an end to my existence with dagger or poison, as to deny me that pecuniary assistance without which I must starve, or as to deny me that assistance without which my intellectual attainments or my moral exertions will be materially injured. He has just as much right to amuse himself with burning my house or torturing my children upon the rack, as to shut himself up in a cell careless about his fellow men, and to hide "his talent in a napkin."

If men have any rights, any discretionary powers, they must be in things of total indifference, as whether I sit on the right or on the left side of my fire, or dine on beef to day or tomorrow. Even these rights are much fewer than we are apt to imagine, since before they can be completely established, it must be proved that my choice on one side or the other can in no possible way contribute to the benefit or injury of myself or of any other person in the world. Those must indeed be rights well worth the contending for, the very essence of which consists in their absolute nugatoriness and inutility.

In reality nothing can appear more wonderful to a careful enquirer, than that two ideas so incompatible as man and rights should ever have been associated together. Certain it is, that one of them must be utterly exclusive and annihilatory of the other. Before we ascribe rights to man, we must conceive of him as a being endowed with intellect, and capable of discerning the differences and tendencies of things. But a being endowed with intellect, and capable of discerning the differences and tendencies of things, instantly becomes a moral being, and has duties incumbent on him to discharge: and duties and rights, as has already been shewn, are absolutely exclusive of each other.

It has been affirmed by the zealous advocates of liberty, "that princes and magistrates have no rights;" and no position can be more incontrovertible. There is no situation of their lives that has not its correspondent duties. There is no power intrusted to them that they are not bound to exercise exclusively for the public good. It is strange that persons adopting this principle did not go a step farther, and perceive that the same restrictions were applicable to subjects and citizens.

Nor is the fallacy of this language more conspicuous than its immoral tendency. To this inaccurate and unjust use of the term right we owe it, that the miser, who accumulates to no end that which diffused would have conduced to the welfare of thousands, that the luxurious man who wallows in indulgence and sees numerous families around him pining in beggary, never fail to tell us of their rights, and to silence animadversion and quiet the censure of their own mind by reminding us, "that they came fairly into possession of their wealth, that they owe no debts, and that of consequence no man has authority to enquire into their private manner of disposing of that which is their own." A great majority of mankind are conscious that they stand in need of this sort of defence, and are therefore very ready to combine against the insolent intruder, who ventures to enquire into "things that do not concern him." They forget, that the wise man and the honest man, the friend of his country and his kind, is concerned for every thing by which they may be affected, and carries about with him a diploma, constituting him inquisitor general of the moral conduct of his neighbours, with a duty annexed to recal them to virtue, by every lesson that truth can enable him to read, and every punishment that plain speaking is competent to inflict.

It is scarcely necessary to add, that, if individuals have no rights, neither has society, which possesses nothing but what individuals have brought into a common stock. The absurdity of the common opinion, as applied to this subject, is still more glaring, if possible, than in the view in which we have already considered it. According to the usual sentiment every club assembling for any civil purpose, every congregation of religionists assembling for the worship of God, has a right to establish any provisions or ceremonies, no matter how ridiculous or detestable, provided they do not interfere with the freedom of others. Reason lies prostrate under their feet. They have a right to trample upon and insult her as they please. It is in the same spirit we have been told that every nation has a right to choose its form of government. A most acute, original and inestimable author was probably misled by the vulgar phraseology on this subject, when he asserted, that, "at a time when neither the people of France nor the national assembly were troubling themselves about the affairs of England or the English parliament, Mr. Burke's conduct was unpardonable in commencing an unprovoked attack upon them."[1]

There are various objections that suggest themselves to the theory which subverts the rights of men; and if the theory be true, they will probably appear in the result to be so far from really hostile to it, as to be found more fairly deducible from and consistent with its principles, than with any of those with which they have inadvertently been connected.

In the first place it has sometimes been alledged, and seems to result from the reasonings already adduced under the head of justice, that "men have a right to the assistance and co-operation of their fellows in every honest pursuit." But, when we assert this proposition, we mean something by the word right exceedingly different from what is commonly understood by the term. We do not understand something discretionary, which, if not voluntarily fulfilled, cannot be considered as a matter of claim. On the contrary every thing adduced upon that occasion was calculated to shew that it was a matter of strict claim; and perhaps something would be gained with respect to perspicuity, if we rather chose to distinguish it by that appellation, than by a name so much abused, and so ambiguous in its application, as the term right.

The true origin of this latter term is relative to the present state of political government, in which many of those actions which moral duty most strictly enjoins us are in no degree brought within the sphere of legislative sanction. Men uninfluenced by comprehensive principles of justice, commit every species of intemperance, are selfish, hard-hearted, licentious and cruel, and maintain their right to all these caprices, because the laws of their country are silent with regard to them. Philosophers and political enquirers have too frequently adopted the same principles with a certain degree of accommodation; though in fact men have no more right to these erroneous propensities in their most qualified sense, than they had to them originally in all their extravagance. It is true, that, under the forms of society now existing in the world, intemperance and the caprices of personal intercourse too frequently escape without animadversion. But in a more perfect form, though they may not fall under the cognisance of law, the offender will probably be so unequivocally reminded by the sincerity of his neighbours of the error he has committed, as to be in no danger of running away with the opinion that he had a right to commit it.

A second and more important objection to the doctrine I am maintaining is derived from the rights as they are called of private judgment, and the liberty of the press. But it may easily be shewn, that these, no more than the articles already mentioned, are rights of discretion. If they were, they would prove, that a man was strictly justifiable in publishing what he believed to be pernicious or false, and that it was a matter of perfect moral indifference whether he conformed to the religious rites of Confucius, of Mahomet, or of Christ. The political freedom of conscience and of the press, so far from being as it is commonly supposed an extension, is a new case of the limitation of rights and discretion. Conscience and the press ought to be unrestrained, not because men have a right to deviate from the exact line that duty prescribes, but because society, the aggregate of individuals, has no right to assume the prerogative of an infallible judge, and to undertake authoritatively to prescribe to its members in matters of pure speculation.

One obvious reason against this assumption on the part of the society is the impossibility by any compulsatory method of bringing men to uniformity of opinion. The judgment we form upon topics of general truth, is or is imagined to be founded upon evidence: and, however it may be soothed by gentle applications to the betraying its impartiality, it is apt to repel with no little pertinacity whatever comes under the form of compulsion. Persecution cannot persuade the understanding, even when it subdues our resolution. It may make us hypocrites; but cannot make us converts. The government therefore, which is anxious above all things to imbue its subjects with integrity and virtue, will be the farthest in the world from discouraging them in the explicit avowal of their sentiments.

But there is another reason of a higher order. Man is not, as has been already shewn, a perfect being, but perfectible. No government, that has yet existed, or is likely presently to exist upon the face of the earth, is faultless. No government ought therefore pertinaciously to resist the change of its own institutions; and still less ought it to set up a standard upon the various topics of human speculation, to restrain the excursions of an inventive mind. It is only by giving a free scope to these excursions, that science, philosophy and morals have arrived at their present degree of perfection, or are capable of going on to that still greater perfection, in comparison of which all that has been already done will perhaps appear childish. But a proceeding, absolutely necessary for the purpose of exciting the mind to these salutary excursions, and still more necessary in order to give them their proper operation, consists in the unrestrained communication of men's thoughts and discoveries to each other. If every man have to begin again at the point from which his neighbour set out, the labour will be endless, and the progress in an unvarying circle. There is nothing that more eminently contributes to intellectual energy, than for every man to be habituated to follow without alarm the train of his speculations, and to utter without fear the conclusions that have suggested themselves to him.—But does all this imply that men have a right to act any thing but virtue, and to utter any thing but truth? Certainly not. It implies indeed that there are points with which society has no right to interfere, not that discretion and caprice are more free, or duty less strict upon these points, than upon any others with which human action is conversant.

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NOTES

[1] Rights of Man, p. 1.

To a rational being there can be but one rule of conduct, justice, and one mode of ascertaining that rule, the exercise of his understanding. If in any instance I be made the mechanical instrument of absolute violence, in that instance I fall under no description of moral conduct either good or bad. But, if, not being operated upon by absolute compulsion, I be wholly prompted by something that is frequently called by that name, and act from the hope of reward or the fear of punishment, my conduct is positively wrong.

Here however a distinction is to be made. Justice, as it was defined in a preceding chapter, is coincident with utility. I am myself a part of the great whole, and my happiness is a part of that complex view of things by which justice is regulated. The hope of reward therefore and the fear of punishment, confined within certain strict limits, are motives that ought to have influence with my mind.

There are two descriptions of tendency that may belong to any action, the tendency which it possesses by the necessary and universal laws of existence, and the tendency which results from the positive interference of some intelligent being. The nature of happiness and misery, pleasure and pain, is independent of all positive institution: that is, it is immutably true that whatever tends to procure a balance of the former is to be desired, and whatever tends to procure a balance of the latter is to be rejected. In like manner the promulgation of virtue, truth and political justice must always be right. There is perhaps no action of a rational being that has not some tendency to promote these objects, and consequently that has not a moral character founded in the abstract nature of things.

The tendency of positive institution is of two sorts, to furnish me with an additional motive to the practice of virtue or right, and to inform my understanding as to what actions are right and what actions are wrong. Much cannot be said in commendation of either of these tendencies.

First, positive institution may furnish me with an additional motive to the practice of virtue. I have an opportunity of contributing very essentially to the advantage of twenty individuals; they will be benefited, and no other persons will sustain a material injury. I ought to embrace this opportunity. Here let us suppose positive institution to interfere, and to annex some great personal reward to myself to the performance of my duty. This immediately changes the nature of the action. Before I preferred it for its intrinsic excellence. Now, so far as the positive institution operates, I prefer it, because some person has arbitrarily annexed to it a great weight of self-interest. But virtue, considered as the quality of an intelligent being, depends upon the disposition with which the action is accompanied. Under a positive institution then this very action, which is intrinsically virtuous, may, so far as relates to the agent, become vicious. The vicious man would before have neglected the advantage of these twenty individuals, because he would not bring a certain inconvenience or trouble upon himself. The same man with the same disposition will now promote their advantage, because his own welfare is concerned in it. Twenty, other things equal, is twenty times better than one. He that is not governed by the moral arithmetic of the case, or who acts from a disposition directly at war with that arithmetic, is unjust. In other words, morality requires that we should be attentive only to the tendency which belongs to any action by the necessary and universal laws of existence. This is what is meant by the principle, "that we should do good, regardless of the consequences;" and by that other, "that we may not do evil, from the prospect of good to result from it." The case would have been rendered still more glaring, if, instead of the welfare of twenty, we had supposed the welfare of millions to have been concerned. In reality, whether the disparity be great or small, the inference ought to be the same.

Secondly, positive institution may inform my understanding as to what actions are right and what actions are wrong. Here it is proper for us to reflect upon the terms understanding and information. Understanding, particularly as it is concerned with moral subjects, is the percipient of truth. This is its proper sphere. Information, so far as it is genuine, is a portion detached from the great body of truth. You inform me, "that Euclid asserts the three angles of a plane triangle to be equal to two right angles." Still I am unacquainted with the truth of this proposition. "But Euclid has demonstrated it. His demonstration has existed for two thousand years, and during that term has proved satisfactory to every man by whom it has been understood." I am nevertheless uninformed. The knowledge of truth lies in the perceived agreement or disagreement of the terms of a proposition. So long as I am unacquainted with the middle term by means of which they may be compared, so long as they are incommensurate to my understanding, you may have furnished me with a principle from which I may reason truly to farther consequences, but as to the principle itself I may strictly be said to know nothing about it.

Every proposition has an intrinsic evidence of its own. Every consequence has premises from which it flows; and upon them, and not upon any thing else, its validity depends. If you could work a miracle to prove, "that the three angles of a triangle were equal to two right angles," I should still know, that the proposition was either true or false previously to the exhibition of that miracle; and that there was no necessary connection between any one of its terms and the miracle exhibited. The miracle would take off my attention from the true question to a question altogether different, that of authority. By the authority adduced I might be prevailed on to yield an irregular assent to the proposition; but I could not properly be said to perceive its truth.

But this is not all. If it were, it might perhaps be regarded as a refinement foreign to the concerns of human life. Positive institutions do not content themselves with requiring my assent to certain propositions, in consideration of the respectable testimony by which they are inforced. This would amount to no more, than advice flowing from a respectable quarter, which after all I might reject, if it did not accord with the mature judgment of my own understanding. But in the very nature of these institutions there is included a sanction, a motive either of punishment or reward to induce me to obedience.

It is commonly said, "that positive institutions ought to leave me perfectly free in matters of conscience, but may properly interfere with my conduct in civil concerns." But this distinction seems to have been very lightly taken up. What sort of moralist must he be, who makes no conscience of what passes in his intercourse with other men? Such a distinction proceeds upon the supposition, "that it is of great consequence whether I bow to the east or the west; whether I call the object of my worship Jehovah or Alla; whether I pay a priest in a surplice or a black coat. These are points in which an honest man ought to be rigid and inflexible. But as to those other, whether he shall be a tyrant, a slave or a free citizen; whether he shall bind himself with multiplied oaths impossible to be performed, or be a rigid observer of truth; whether he shall swear allegiance to a king de jure or a king de facto, to the best or the worst of all possible governments; respecting these points he may safely commit his conscience to the keeping of the civil magistrate." In reality there are perhaps no concerns of a rational being, over which morality does not extend its province, and respecting which he is not bound to a conscientious proceeding.

I am satisfied at present, that a certain conduct, suppose it be a rigid attention to the confidence of private conversation, is incumbent upon me. You tell me, "there are certain cases of such peculiar emergency as to supersede this rule." Perhaps I think there are not. If I admit your proposition, a wide field of enquiry is opened, respecting what cases do or do not deserve to be considered as exceptions. It is little likely that we should agree respecting all these cases. How then does the law treat me, for my conscientious discharge of what I conceive to be my duty? Because I will not turn informer (which, it may be, I think an infamous character) against my most valued friend, the law accuses me of misprision of treason, felony or murder, and perhaps hangs me. I believe a certain individual to be a confirmed villain, and a most dangerous member of society, and feel it to be my duty to warn others, perhaps the public, against the effect of his vices. Because I publish what I know to be true, the law convicts me of libel, scandalum magnatum, and crimes of I know not what complicated denomination.

If the evil stopped here, it would be well. If I only suffered a certain calamity, suppose death, I could endure it. Death has hitherto been the common lot of men, and I expect at some time or other to submit to it. Human society must sooner or later be deprived of its individual members, whether they be valuable, or whether they be inconsiderable. But the punishment acts not only retrospectively upon me, but prospectively upon my contemporaries and countrymen. My neighbour entertains the same opinion respecting the conduct he ought to hold as I did. But the executioner of public justice interposes with a powerful argument, to convince him that he has mistaken the path of abstract rectitude.

What sort of converts will be produced by this unfeeling logic? "I have deeply reflected," suppose, "upon the nature of virtue, and am convinced that a certain proceeding is incumbent on me. But the hangman, supported by an act of parliament, assures me I am mistaken." If I yield my opinion to his dictum, my action becomes modified, and my character too. An influence like this is inconsistent with all generous magnanimity of spirit, all ardent impartiality in the discovery of truth, and all inflexible perseverance in its assertion. Countries, exposed to the perpetual interference of decrees instead of arguments, exhibit within their boundaries the mere phantoms of men. We can never judge from an observation of their inhabitants what men would be, if they knew of no appeal from the tribunal of conscience, and if, whatever they thought, they dared to speak, and dared to act.

At present there will perhaps occur to the majority of readers but few instances of laws, which may be supposed to interfere with the conscientious discharge of duty. A considerable number will occur in the course of the present enquiry. More would readily offer themselves to a patient research. Men are so successfully reduced to a common standard by the operation of positive law, that in most countries they are capable of little more than like parrots repeating each other. This uniformity is capable of being produced in two ways, by energy of mind and indefatigableness of enquiry, enabling a considerable number to penetrate with equal success into the recesses of truth; and by pusillanimity of temper and a frigid indifference to right and wrong, produced by the penalties which are suspended over such as shall disinterestedly enquire, and communicate and act upon the result of their enquiries. It is easy to perceive which of these is the cause of the uniformity that prevails in the present instance.

If there be any truth more unquestionable than the rest, it is, that every man is bound to the exertion of his faculties in the discovery of right, and to the carrying into effect all the right with which he is acquainted. It may be granted that an infallible standard, if it could be discovered, would be considerably beneficial. But this infallible standard itself would be of little use in human affairs, unless it had the property of reasoning as well as deciding, of enlightening the mind as well as constraining the body. If a man be in some cases obliged to prefer his own judgment, he is in all cases obliged to consult that judgment, before he can determine whether the matter in question be of the sort provided for or no. So that from this reasoning it ultimately appears, that no man is obliged to conform to any rule of conduct, farther than the rule is consistent with justice.

Such are the genuine principles of human society. Such would be the unconstrained concord of its members, in a state where every individual within the society, and every neighbour without, was capable of listening with sobriety to the dictates of reason. We shall not fail to be impressed with considerable regret, if, when we descend to the present mixed characters of mankind, we find ourselves obliged in any degree to depart from so simple and grand a principle. The universal exercise of private judgment is a doctrine so unspeakably beautiful, that the true politician will certainly resolve to interfere with it as sparingly and in as few instances as possible. Let us consider what are the emergencies that may be thought to demand an exception. They can only be briefly stated in this place, each of them requiring to be minutely examined in the subsequent stages of the enquiry.

In the first place then it seems necessary for some powerful arbitrator to interfere, where the proceedings of the individual threaten the most injurious consequences to his neighbours, and where the instant nature of the case will not accord with the uncertain progress of argument and conviction addressed to the mind of the offender. A man, suppose, has committed murder, or, to make the case more aggravated, several murders; and, having thus far over-stepped all those boundaries of innocence and guilt which restrain the generality of men, it is to be presumed from analogy that he may be led to the commission of other murders. At first it may appear to be no great infringement upon the exercise of private judgment, to put it under some degree of restraint, when it leads to the commission of atrocious crimes. There are however certain difficulties in the case which are worthy to be considered.

First, as soon as we admit the propriety of a rule such as that above stated, our next concern will be with the evidence, which shall lead to the acquittal or conviction of the person accused. Now it is well known, that no principles of evidence have yet been laid down that are infallible. Human affairs universally proceed upon presumption and probability. An eye-witness must identify the person of the offender, and in this he may be mistaken. We must necessarily be contented with presumptive proofs of his intention; and often are or imagine ourselves to be obliged to admit presumptive evidence of the fact itself. The consequence is inevitable. And surely it is no trivial evil, to subject an innocent man eventually, to the public award and the established punishment annexed to the most atrocious crimes.

Secondly, the same external action will admit of every possible shade of virtue or vice. One man shall commit murder, to remove a troublesome observer of his depraved dispositions, who will otherwise counteract and expose him to the world. A second, because he cannot bear the ingenuous sincerity with which he is told of his vices. A third, from his intolerable envy of superior merit. A fourth, because he knows his adversary meditates an act pregnant with extensive mischief, and he perceives no other mode by which its perpetration can be prevented. A fifth, in the actual defence of his father's life or his daughter's chastity. Each of these men, except perhaps the last, may act either from momentary impulse, or from any of the infinite shades and degrees of deliberation. Would you award one individual punishment to all these varieties of action? Can you pretend in each instance to ascertain the exact quantity of wrong, equivalent to each? Strictly speaking no two men were ever guilty of the same crime; but here comes in positive law with its Procrustes's bed, and levels all characters, and tramples upon all distinctions.

Thirdly, punishment is not the appropriate mode of correcting the errors of mankind. It will probably be admitted, that the only true end of punishment is correction. That question will be discussed in another part of the present enquiry. "I have done something, which though wrong in itself, I believe to be right; or I have done something which I usually admit to be wrong; but my conviction upon the subject is not so clear and forcible, as to prevent my yielding to a powerful temptation." There can be no doubt, that the proper way of conveying to my understanding a truth of which I am ignorant, or of impressing upon me a firmer persuasion of a truth with which I am acquainted, is by an appeal to my reason. Even an angry expostulation with me upon my conduct will but excite similar passions in me, and cloud instead of illuminate my understanding. There is certainly a way of expressing truth, with such benevolence as to command attention, and such evidence as to inforce conviction in all cases whatever.

Punishment inevitably excites in the sufferer, and ought to excite, a sense of injustice. Let its purpose be to convince me of the truth of a proposition, which I at present believe to be false. It is not abstractedly considered of the nature of an argument, and therefore it cannot begin with producing conviction. Punishment is a specious name, but is in reality nothing more than force put upon one being by another who happens to be stronger. Now strength apparently does not constitute justice, nor ought "might," according to a trite proverb, to "overcome right." The case of punishment, which we are now considering, is the case of you and I differing in opinion, and your telling me that you must be right, since you have a more brawny arm, or have applied your mind more to the acquiring skill in your weapons than I have.

But let us suppose, "that I am convinced of my error, but that my conviction is superficial and fluctuating, and the object you propose is to render it durable and profound." Ought it to be thus durable and profound? There are no doubt arguments and reasons calculated to render it so. Is it in reality problematical, and do you wish by the weight of your blows to make up for the deficiency of your logic? This can never be defended. An appeal to force must appear to both parties, in proportion to the soundness of their understanding, to be a confession of imbecility. He that has recourse to it, would have no occasion for this expedient, if he were sufficiently acquainted with the powers of that truth it is his office to communicate. If there be any man, who, in suffering punishment, is not conscious of injustice, he must have had his mind previously debased by slavery, and his sense of moral right and wrong blunted by a series of oppression.

The case is not altered for the better, if I suffer punishment, not for my own correction, but for an example to others. Upon this supposition a new difficulty is introduced, respecting the propriety of one man's being subjected to pain, for the sake of improving the character and eradicating the vices of another. The suffering is here also involuntary. Now, though will cannot alter the nature of justice, it must be admitted that the voluntary sufferer has at least one advantage over the involuntary, in the conscious liberality of his purpose. He that suffers, not for his own correction, but for the advantage of others, stands, so far as relates to that suffering, in the situation of an innocent person. If the suffering had relation to him personally as a vicious or imperfect character, it must have relation to him in respect either to the past or the future. It cannot have relation to him as to the past, for that is concluded and beyond the reach of alteration or remedy. By the supposition it has not relation to him but to others as to the future.

It ought to be observed in this place, that by innocence I do not understand virtue. Innocence is a sort of neutral character, and stands in the mid way between good and harm. Undoubtedly it were better, that a person useless to society should be destroyed than a man of eminent worth, and a person likely to prove injurious than either. I say likely to prove injurious; for the fault already committed, being irrevocable, ought not to enter into the account, and we have nothing to do but with the probability of its repetition. It is in this sense that the sufferer stands upon a level with many of those persons, who are usually denominated innocent.

It must also be allowed, that there are cases in which it is proper that innocent men should suffer for the public good. But this is a question of a very delicate nature, and the severe moralist will be very reluctant to condemn that man to die for the benefit of others, who is desirous to live.

As to every other circumstance in the case of him who is punished for an example to others, it remains precisely the same as when we supposed him to be punished for his own reformation. It is still an argument of the most exceptionable nature employed to correct the opinions of mankind. It is still a menace of violence made use of to persuade them of the truth or falshood of a proposition. It has little chance of making them wise, and can scarcely fail of making them timid, dissembling and corrupt.

Notwithstanding all these objections, it would be difficult to find a country, respecting which we could say, that the inhabitants might with safety be dismissed from the operation of punishment. So mixed is human character, so wild are its excursions, so calamitous and detestable are the errors into which it occasionally falls, that something more than argument seems necessary for their suppression. Human beings are such tyros in the art of reasoning, that the wisest of us often prove impotent in our attempts, where an instant effect was most powerfully wanted. While I stand still to reason with the thief, the assassin or the oppressor, they hasten to new scenes of devastation, and with unsparing violence confound all the principles of human society. I should obtain little success by the abolition of punishment, unless I could at the same time abolish those causes that generate temptation and make punishment necessary. Meanwhile the arguments already adduced may be sufficient to shew that punishment is always an evil, and to persuade us never to recur to it but from the most evident necessity.

The remaining cases in which it may seem requisite to have recourse to the general will of the society, and to supersede the private judgment of individuals, are, when we are called upon to counteract the hostilities of an internal enemy, or to repel the attacks of a foreign invader. Here as in the former instance the evils that arise from an usurpation upon private judgment are many and various. It is wrong that I should contribute in any mode to a proceeding, a war for example, that I believe to be unjust. Ought I to draw my sword, when the adversary appears to me to be employed in repelling a wanton aggression? The case seems not to be at all different, if I contribute my property, the produce it may be of my personal labour; though custom has reconciled us to the one rather than the other.

The consequences are a degradation of character and a relaxation of principle, in the person who is thus made the instrument of a transaction, which his judgment disapproves. In this case, as has been already stated generally, the human mind is compressed and unnerved, till it affords us scarcely the semblance of what it might otherwise have been. And, in addition to the general considerations in similar cases, it may be observed, that the frequent and obstinate wars which at present desolate the human race would be nearly extirpated, if they were supported only by the voluntary contributions of those by whom their principle was approved.

The objection, which has hitherto been permitted practically to supersede these reasonings, is the difficulty of conducting an affair, in the success of which millions may be interested, upon so precarious a support as that of private judgment. The men, with whom we are usually concerned in human society, are of so mixed a character, and a self-love of the narrowest kind is so deeply rooted in many of them, that it seems nearly unavoidable upon the scheme of voluntary contribution, that the most generous would pay a very ample proportion, while the mean and avaricious, though they contributed nothing, would come in for their full share of the benefit. He that would reconcile a perfect freedom in this respect with the interest of the whole, ought to propose at the same time the means of extirpating selfishness and vice. How far such a proposal is feasible will come hereafter to be considered.