324

FREE STATEMENT OF THE TRUTH.

[ESSAY III. was prosecuted, found guilty, and sentenced to some imprisonment. What was the result? Why the party made a subscription for him to the amount, it was said, of four thousand pounds. What bad man would not publish a libel to be so paid? What discreet government would prosecute a libel to be so defeated?

But if the uses of a free statement of the truth be so great in the case of private persons, much more it is desirable in the case of political affairs. To discuss, and if needful, temperately to animadvert upon the conduct of governments, is the proper business of the public. How else shall the judgment of a people be called forth and expressed? How else shall they induce an amendment in public measures? The very circumstance that government is above the customary control of the laws, is a good reason for allowing the people freely to deliver their sentiments upon its conduct. Many ill actions of the private man may be punished by the law; but how shall the ill actions of public persons be discountenanced if it be not by the expression of the public mind? A people have sometimes no other means of promoting reformations in the conduct of government, than by exposing those parts in which reformation is needed. The argument then is short.-To prosecute false political libels is unreasonable, for there are better and wiser means of procedure. To prosecute true statements is wrong, because truth ought to be freely told; and if it were not wrong, it would be absurd, because a government inflicts more injury upon itself by the prosecution than was inflicted by the statement itself.

As the subject maligned rises in dignity, we are presented with stronger and still stronger dissuasions to the legal prosecution of the maligner. There are more reasons against prosecuting a political than a private aspersion: there are more reasons against prosecuting aspersions upon religion than either. Supposing, which we must suppose, that religion is true, then all libels upon it must be false; and like other false libels are better met by proving the truth than by punishing the liar. "Christianity is but ill defended," says Paley, "by refusing audience or toleration to the objections of unbelievers." It is a scandal to religion to prosecute the man who makes objections to its truths: for what is the inference in the objector's mind but this, that we resort to force because we cannot produce arguments? Nor let me be misinterpreted if I ask, What is Christianity, or who shall define it? I may be of opinion, and in fact I am of opinion, that some of the doctrines which the professors of Christianity promulgate, are as much opposed to Christianity as some of the arguments of unbelievers. But this is not a good reason for making my judgment the standard of truth. Yet, without a standard, how shall we prosecute him who impugns Christianity? How, rather, shall we know whether he impugns Christianity or something else? Truth is an overmatch for falsehood. Where they are allowed fairly to conflict, truth is sure of the victory. Who then would rob her of the victory by silencing falsehood by force? It is by such contests that the cause of truth is promoted. The assailant calls forth defenders; and it has in fact happened, that the proofs and practical authority of religion

*Mor. and Pol. Phil. b. 5, c. 9.

CHAP. 11.]

FREEDOM OF THE PRESS.

325

have been strengthened by defences which, but for the assaults of error, might never have been made or sought.

If it be said that fair argument, however unsound, may be tolerated, and that you only mean to punish the authors of reproachful and scandalous attacks upon religion,-we answer, that these attacks, like every other, are better repelled by exposure or by neglect than by force. You can scarcely prosecute these bad men (so experience teaches) without making them cry out about persecution, and without calling around them a party who might otherwise have held their peace. They exclaim, "The sufferer believed what he wrote, and thought that to publish it was for the general good." All this may be false, but it is specious. At any rate you cannot disprove it. Sympathy for the man induces sympathy for his principles.-Another way in which a prosecution defeats its proper object is, that to prosecute a writing, whether scandalous or only false, is a sure way of making the book read. Thousands inquire for a profligate book because they hear it is of so much importance as to be prosecuted, who else would not have inquired because they would not have heard of it. So it was about forty years ago with Paine's works. What, says gaping curiosity, can this book be, which ministers and bishops are so anxious that we should not read? Multitudes have read the profligate later works of the unhappy Lord Byron, but probably unnumbered multitudes more would have read them if they had been prosecuted by the attorney-general and burnt by the hangman. As it is, it may be hoped they will sink into oblivion by the weight of their own obscene profaneness.*

One objection applies to nearly all prosecutions of books,-that it is almost impossible to restrain the licentiousness of the press without diminishing its wholesome freedom. The boundaries of freedom and licentiousness cannot be defined by law. No law can be devised which shall at once exclude the evil and permit the good. Now to restrain the freedom of the press is among the greatest mischiefs which can be inflicted upon mankind. The reader will be prepared to acknowledge the magnitude of the mischief, if he considers how powerful and how proper an agent public opinion is in promoting social and political reformations. There is no agent of reformation so desirable as the quiet influence of the public judgment; and in order to make this judgment sound and powerful, the press should be free.

The general conclusion that is suggested by the present chapter is, what the intelligent and Christian reader might expect, that the legislator should endeavour, so far as from time to time becomes practicable, to direct

* This man affords an instance of that strange detraction from our own reputation with posterity to which we have before referred. He certainly wished that "dull oblivion" should not

"bar

His name from out the temple where the dead

Are honoured by the nations."

How preposterous then to be the suicide of so large a portion of his hopes, by writing what experience might teach him the nations would not honour!

326

PROPER ENDS OF PUNISHMENT.

[ESSAY III. penal animadversion to those actions which are prohibited by the moral law; that he should endeavour this, both by addition and deduction; by ceasing to punish that which morality does not condemn, and by extending punishment to more of those actions which it does condemn.

As to the seeming exception in the case of libels, we do not contend so much for their impunity, as that the law is not the best means of punishment. By taking the care of restraining this offence from the law and placing it in the hands of the public, the punishment would sometimes be not only more effectual but more severe

CHAPTER XII.

OF THE PROPER ENDS OF PUNISHMENT.

WHY is a man who commits an offence punished for the act? Is it for his own advantage, or for that of others, or for both?-For both, and primarily for his own:* which answer will perhaps the more readily recommend itself, if it can be shown that the good of others, that is, of the public, is best consulted by those systems of punishment which are most effectual in benefiting the offender himself.

When we recur to the precepts and the spirit of Christianity, we find that the one great pervading principle by which it requires us to regulate our conduct towards others is that of operative, practical good-will,that good-will which, if they be in suffering, will prompt us to alleviate the misery, if they be vicious, will prompt us to reclaim them from vice. That the misconduct of the individual exempts us from the obligation to regard this rule, it would be futile to imagine. It is by him that the exercise of benevolence is peculiarly needed. He is the morally sick, who needs the physician; and such a physician he, who by comparison is morally whole, should be. If we adopt the spirit of the declaration, “I came not to call the righteous but sinners to repentance," we shall enter. tain no doubt that the reformation of offenders is the primary business of the Christian in devising punishments. There appears no reason why, in the case of public criminals, the spirit of the rule should not be acted upon,-"If a brother be overtaken in a fault restore such an one." Among the Corinthians there was an individual who had committed a gross offence, such as is now punished by the law of England. Of this criminal Paul speaks in strong terms of reprobation in the first epistle. The effect proved to be good; and the offender having apparently become reformed, the Corinthians were directed, in the second epistle, to forgive and to comfort him.

When therefore a person has committed a crime, the great duty of those who in common with himself are candidates for the mercy of God, is to endeavour to meliorate and rectify the dispositions in which his crime originates; to subdue the vehemence of his passions,-to raise

"The end of all correction is either the amendment of wicked men or to prevent the influence of ill example." This is the rule of Seneca; and by mentioning amendment first, he appears to have regarded it as the primary object.

CHAP. 12.]

REFORMATION-EXAMPLE-RESTITUTION.

327

up in his mind a power that may counteract the power of future temptation. We should feel towards these mentally diseased, as we feel towards the physical sufferer,-compassion; and the great object should be to cure the disease. No doubt in endeavouring this object severe remedies must often be employed. It is just what we should expect ; and the remedies will probably be severe in proportion to the inveteracy and malignity of the complaint, But still the end should never be forgotten, and I think a just estimate of our moral obligations will lead us to regard the attainment of that end as paramount to every other.

There is one great practical advantage in directing the attention especially to this moral cure, which is this, that if it be successful it prevents the offender from offending again. It is well known that the proportion of those who, having once suffered the stated punishment, again transgress the laws and are again convicted, is great. But to whatever extent reformation was attained, this unhappy result would be prevented.

The second object of punishment, that of example, appears to be recognised as right by Christianity when it says that the magistrate is a "terror" to bad men; and when it admonishes such to be "afraid" of his power. There can be no reason for speaking of punishment as a terror, unless it were right to adopt such punishments as would deter. In the private discipline of the church the same idea is kept in view:-"Them that sin rebuke before all, that others also may fear." The parallel of physical disease may also still hold. The offender is a member of the social body; and the physician who endeavours to remove a local disease always acts with a reference to the health of the system.

In stating reformation as the first object, we also conclude, that if, in any case, the attainment of reformation and the exhibition of example should be found to be incompatible, the former is to be preferred. I say if; for it is by no means certain that such cases will ever arise. The measures which are necessary to reformation must operate as example; and in general, since the reformation of the more hardened offenders is not to be expected except by severe measures, the influence of terror in endeavouring reformation will increase with the malignity of the crime. This is just what we need, and what the penal legislator is so solicitous to secure. The point for the exercise of wisdom is, to attain the second object in attaining the first. A primary regard to the first object is compatible with many modifications of punishment in order more effectually to attain the second. If there are two measures of which both tend alike to reformation, and one tends most to operate as example, that one should unquestionably be preferred.

There is a third object which, though subordinate to the others, might perhaps still obtain greater notice from the legislator than it is wont to do, restitution or compensation. Since what are called criminal actions are commonly injuries committed by one man upon another, it appears to be a very obvious dictate of reason that the injury should be repaired;—that he from whom the thief steals a purse should regain its value; that he who is injured in his person or otherwise should receive such compensation as he may. When my house is broken into and a

* 1 Tim. v. 20.

"The law of nature commands that reparation be made." Mor. and Pol. Phil. b. 6, c. 8. And this dictate of nature appears to have been recognised in the Mosaic law, in which compensation to the suffering party is expressly required.

328

GODWIN ON PUNISHMENT.

[ESSAY III. hundred pounds worth of property is carried off, it is but an imperfect satisfaction to me that the robber will be punished. I ought to recover the value of my property. The magistrate, in taking care of the general, should take care of the individual weal. The laws of England do now award compensation in damages for some injuries. This is a recognition of the principle; although it is remarkable, not only that the number of offences which are thus punished is small, but that they are frequently of a sort in which pecuniary loss has not been sustained by the injured party.

I do not imagine that in the present state of penal law or of the administration of justice, a general regard to compensation is practicable, but this does not prove that it ought not to be regarded. If in an improved state of penal affairs it should be found practicable to oblige offenders to recompense by their labour those who had suffered by their crime, this advantage would attend, that while it would probably involve considerable punishment, it would approve itself to the offender's mind as the demand of reason and of justice. This is no trifling consideration; for in every species of coercion and punishment, public or domestic, it is of consequence that the punished party should feel the justice and propriety of the measures which are adopted.

46

The writer of these essays would be among the last to reprobate a strict adherence to abstract principles, as such; but some men, in their zeal for such principles, have proposed strange doctrines upon the subject of punishment. It has been said that when a crime has been committed it cannot be recalled, that it is a past and irrevocable action," and that to inflict pain upon the criminal because he has committed it, "is one of the wildest conceptions of untutored barbarism." No one perhaps would affirm that, in strictness, such a motive to punishment is right; but how, when an offence is committed, can you separate the objects of punishment so as not practically to punish because the man has offended? If you regulate the punishment by its legitimate objects, you punish because the offender needs it; and as all offenders do need it, you punish all;-which amounts in practice to nearly the same thing as punishing because they have committed a crime. However, as an abstract principle there might be little occasion to dispute about it; but when it is made a foundation for such doctrine as the following, it is needful to recall the supreme authority of the moral law. "We are bound, under certain urgent circumstances, to deprive the offender of the liberty he has abused. Further than this, no circumstance can authorize us. infliction of further evil, when his power to injure is removed, is the wild and unauthorized dictate of vengeance and rage." This is affirmative; and in turn I would affirm that it is the sober and authorized dictate of justice and good-will. But indeed why may we even restrain him? Obviously for the sake of others;-and for the sake of others we may also do more. Besides, this philosophy leaves the offender's reformation out of the question. If he is so wicked that you are obliged to confine him lest he should commit violence again, he is so wicked that you are obliged to confine him for his own good. And in reality the writer himself had just before virtually disproved his own position :-"Whatever gentleness," he says, "the intellectual physician may display, it is not to be

The