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nothing but common fairness in excommunicating from a society any member whose character is unsuitable to it, and who refuses to share its restraints while partaking of its privileges. Accordingly, the power of exclusion in case of inveterate bad conduct, is reckoned essential to every society. But as regards the state at large, mere exclusion is scarcely practicable. In ancient nations, exile was a punishment; and in European countries where a passport system is maintained, it may be still employed; but in general, when the state excommunicates, it must be by death or confinement.
6. Feelings of mercy towards the criminal, disposing us to consider him unfortunate rather than vicious, and to aim at bringing about his reformation. This mode of looking at offenders proceeds from the compassionate instead of the vindictive side of human nature. It takes a humble view of the best of mankind, and urges the smallness of the difference, on a high standard of comparison, between the criminal and the no-criminal; a difference far less than is made by rigorously punishing the one while the other partakes in the security thus purchased. Hence an invincible reluctance to go one jot beyond the exigencies of security and justice in the application of punishment, and an utter repudiation of vindictiveness as a motive in the case. Hence, also, schemes for reforming and restoring the offender, and for incorporating this object with his punishment. A great desire is manifested in the present day to establish in civil society a system, the counterpart of that repentance and restoration set forth in Christianity for the general delinquency of human nature.
Our feeling of the guilt of a criminal contains two very different ingredients. One is, the shock given to our confidence in the character of the wrong-doer. Such shocks are always got over with difficulty. It takes but a small matter to destroy security, while a great deal is required to restore it. This will ever be a bar to the easy rehabilitation of the offender.
The other ingredient in guilt, is the stain or impurity that it leaves behind it as distinguished from the loss of confidence. We alluded in our preliminary section to the wide-spread sentiment connected with purity, or with the entire absence from the character of certain things conceived as of the nature of defilement. This sentiment is of great strength in the matter of freedom from punishable crime. It affects both the criminal himself, and the general opinion around him. There is often considerable obstinacy in the continuance of this association, after the fullest satisfaction has been rendered for the wrong. Hence, in former days, nothing less than religious solemnities sufficed for the purification of the repentant
wrong-doer-these being of a nature to act upon the peculiar kind of sensibility that connected crime with defilement. But the notion of defilement or taint is one to be respected only in so far as it can be borne out by considerations of social and personal good; for nothing has led men further astray than the fancies set up in the name of purity.
There is necessarily permitted to offenders before they become 'habit and repute,' a locus penitentiæ, or room for repentance and amendment. No necessity of punitive justice is more sacred than the rightness of receiving the voluntary amends of the casual offender, as a clearance for a single offence. The self-humiliation of a wrong-doer, in making restitution in kind to the wronged party, answers the ends of society, and satisfies the sense of justice, as much as punishment can do.
The keeping up of the notion of an indelible stain, or an unpardonable criminality on account of an action not become habitual, and not of itself an evidence of incurable bad character, cannot be defended on any rational or moral consideration. It is opposed to the interests of society, which require that quarrels should terminate; and is equally opposed to all that is becoming in one human being towards another.
The punishment inflicted by the conscience of the wrong-doer, is keen and effectual in proportion to the strength of the feelings and impulses that enter into its composition. A native vigour of conscience, or a sedulous cultivation of its component elements, is both the security against crime and the engine for working the recovery of the fallen character. The feeling of guilt may be such as to render some mode of penance or satisfaction as essential to the peace of the individual wrong-doer, as it is to the demands of justice and society.
The popular sanction, or the disapprobation of friends, neighbours, and society in general, is still more powerful, in the majority of cases, than individual remorse, besides being more disinterested. 'The popular sanction,' as Bentham observes, 'when enlightened by deontological (or ethical) principle, corrects the aberrations of individual judgment, and takes the wrong-doer out of those regions where the interests and passions of the sufferer make vengeance, not justice, the grounds of his award. . . . . The more men live in public, the more amenable they are to the moral sanction. The greater dependence men are in to the public-that is, the more equality there is among them -the clearer the evidence comes out, the more it has of certainty in its results. The liberty of the press throws all men into the public presence. The liberty of the press is the greatest coadjutor
of the moral sanction. Under such influence, it were strange if men grew not every day more virtuous than on the former day.' The mere censure of the society that one lives in, is a heavy infliction; but to this is not unfrequently added, the loss of benefits that make a part of one's existence. It is possible to make life miserable almost beyond endurance by mere hostile opinion, more especially in the case of persons very much dependent on society and the esteem of others. The difference of characters in this particular, gives rise to a very great inequality in the punishments of public opinion.]
[Toleration means much the same thing as liberty, and both are opposed by the restraints put upon men in the name of social order and morality.
If there be a self-evident force in the axioms that assert social security and self-preservation, with all the consequent obligations, there is no less force in the principle of avoiding all unnecessary restraints upon individual liberty. It is on the portion of free-will left to a man, that the working out of his own peculiar happiness depends, or that share of enjoyment that comes home most thoroughly to his individual character. Moreover, in whatever way we define the essential dignity of human nature, free-will is an indispensable feature of it.
There are certain kinds of liberty more valuable than others. The free exercise of the intellectual faculties, is the kind of freedom most necessary for the elevation of the individual being, and for the civilisation of the race. This implies freedom of opinion in all matters of pure speculation, and the freest discussion of every class of questions.
A first principle of toleration, is to oppose reasonings by reasonings, and not by force. If, under cover of the general toleration, any doctrines were promulgated that tend to anarchical or mischievous actions, the proper course for government to take would be, to leave the opinions alone, and to punish all the attempts to put them in practice.
It is often easier to procure the toleration of law, than to procure the toleration of popular opinion. So long as people are disposed to consider certain beliefs in politics, in science, in religion, or in morals, as essential to a good and trustworthy character in other respects, we are not to look for genuine liberality of sentiment in
1 Bentham's Deontology, vol. i. p. 100.
the public mind. They that can take larger views of human nature, and can discern the existence of good social qualities under the most various creeds, are almost sure to be tolerant.
The right of individuality is one of the most valuable of the so-called 'rights of men;' and for its sake, as well as on other grounds, toleration in opinions, in tastes, in occupations and pursuits, is eminently desirable. If all men were precisely alike, there would be but one set of beliefs, and one rule of life; and the rigorous uniformity enacted by a Czar Peter, would be the proper mode of governing the world.
With regard to the connection of liberty with social order, the principle appears to be, 'that the extent of freedom permitted to individuals should be in proportion to their fitness, natural or acquired, to do of their own accord what is required of them by society.
'In the education of the young, we begin by controlling them in everything they do. As their intelligence and self-control are developed, they are allowed more and more latitude. They have leave to choose their own sports, and consult their own tastes, when it is seen that they can keep themselves out of harm's way. When they have grown somewhat older, and shewn the possession of average discretion, they may wander from home for whole days, and carve out their own employments and recreations, and in a great measure regulate the routine of their existence. In short, they obtain more and more of liberty, according as it is presumed that the self-directing force within them has been tuned to the rectitudes and proprieties of human life.
'It is now believed by many, that the domestic slavery of the ancients was indispensable for breaking in savage humanity to habits of regular industrial occupation. In those rude times, if a man was allowed liberty of employment, he chose war, or hunting, or plunder, or something that was fiery, exciting, and brief. The promise of bed-and-board and pocket-money could not induce people to toil steadily from six to six at the dull drudgery of the plough, the loom, or the oar; hence compulsion had to be used. But the moment that self-interest became powerful enough to create propensities to labour, it was time that the compulsion should be withdrawn. Freedom is a nobler state than slavery, and human beings ought not to be prevented from the exercise of their most elevated capacities. The modern workman can choose his own master and possess his own home in opposition to slavery; he can choose his residence in opposition to serfhood; he can choose his trade in opposition to castes and corporate restrictions; he can rise to be a master in opposition to the exclusiveness of ranks; and we find that, with all this freedom, the work is done, and better done, and the workman's life rendered happier.
'But it is unquestionably true,, that in proportion as a free range of action is permitted to individuals, the risks of disorder are multiplied; hence an eye to security and stability generally suggests the keeping up of restraints. To preserve existing religious beliefs and observances, it has been common to punish and put down all dissent: to maintain the civil constitution, the liberty of free discussion on political questions has been generally denied, and public meetings and popular agitations put under restraint to shut the doors against irregular and troublesome ambition, high offices have been expressly restricted to some narrow hereditary body: to prevent combinations and plottings against authority, the people's sports and out-of-door motions have at times been subject of authoritative regulation. The keenest and most sensitive parts of human nature have been violently crossed by regulations issued in the name of good order; and it would be perfectly absurd to suppose, that all these restrictions have been superfluous stretches of arbitrary power-they were suggested by the necessities of Order, and became illegitimate only when Order could be preserved by milder methods.
'It is a very natural mistake to confound liberty with popular power. Liberty has often been the result of the popular acquisition of power, but the two are not identical. Liberty of conscience and religious observance, liberty of thought, liberty of speech, liberty of doing good to our fellows in our own way, liberty of education, liberty of choosing our occupation, liberty of using our gifts and talents to advantage, liberty of doing what we please with our own, liberty of trading, liberty of guiding our own movements-all these we may have without any vote in the appointing of the government, and we may fail in securing many of them under a popular constitution.'1]
1'Education of the Citizen.'-Chambers's Papers for the People.
EDINBURGH: PRINTED BY W. AND R. CHAMBERS.