Whatever may be the cause that obliges man to act, society possesses the right to crush the effects, as much as the man whose land would be ruined by a river, has to restrain its waters by a bank: or even, if he is able, to turn its course. It is by virtue of this right that society has the power to intimidate, the faculty to punish, with a view to its own conservation, those who may be tempted to injure it; or those who commit actions which are acknowledged really to interrupt its repose; to be inimical to its security; repugnant to its happiness.
It will, perhaps, be argued, that society does not, usually, punish those faults in which the will has no share; that, in fact, it punishes the will alone; that this it is which decides the nature of the crime, and the degree of its atrocity; that if this will be not free, it ought not to be punished. I reply, that society is an assemblage of sensible beings, susceptible of reason, who desire their own welfare; who fear evil, and seek after good. These dispositions enable their will to be so modified or determined, that they are capable of holding such a conduct as will conduce to the end they have in view. Education, the laws, public opinion, example, habit, fear, are the causes that must modify associated man, influence his will, regulate his passions, restrain the actions of him who is capable of injuring the end of his association, and thereby make him concur to the general happiness. These causes are of a nature to make impressions on every man, whose organization, whose essence, whose sanity, places him in a capacity to contract the habits, to imbibe the modes of thinking, to adopt the manner of acting, with which society is willing to inspire him. All the individuals of the human species are susceptible of fear, from whence it flows as a natural consequence, that the fear of punishment, or the privation of the happiness he desires, are motives that must necessarily more or less influence his will, and regulate his actions. If the man is to be found who is so badly constituted as to resist, whose organization is so vicious as to be insensible to those motives which operate upon all his fellows, he is not fit to live in society; he would contradict the very end of his association: he would be its enemy; he would place obstacles to its natural tendency; his rebellious disposition, his unsociable will, not being susceptible of that modification which is convenient to his own true interests and to the interests of his fellow-citizens; these would unite themselves against such an enemy; and the law which is, or ought to be the expression of the general will, would visit with condign punishment that refractory individual upon whom the motives presented to him by society, had not the effect which it had been induced to expect: in consequence, such an unsociable man would be chastised; he would be rendered miserable, and according to the nature of his crime he would be excluded from society as a being but little calculated to concur in its views.
If society has the right to conserve itself, it has also the right to take the means: these means are the laws which present or ought to present to the will of man those motives which are most suitable to deter him from committing injurious actions. If these motives fail of the proper effect, if they are unable to influence him, society, for its own peculiar good, is obliged to wrest from him the power of doing it further injury. From whatever source his actions may arise, therefore, whether they are the result of free-agency, or whether they are the offspring of necessity, society coerces him if, after having furnished him with motives, sufficiently powerful to act upon reasonable beings, it perceives that these motives have not been competent to vanquish his depraved nature. It punishes him with justice, when the actions from which it dissuades him are truly injurious to society; it has an unquestionable right to punish, when it only commands those things that are conformable to the end proposed by man in his association; or defends the commission of those acts, which are contrary to this end; which are hostile to the nature of beings associated for their reciprocal advantage. But, on the other hand, the law has not acquired the right to punish him: if it has failed to present to him the motives necessary to have an influence over his will, it has not the right to coerce him if the negligence of society has deprived him of the means of subsisting; of exercising his talents; of exerting his industry; of labouring for its welfare. It is unjust, when it punishes those to whom it has, neither given an education, nor honest principles; whom it has not enabled to contract habits necessary to the maintenance of society: it is unjust when it punishes them for faults which the wants of their nature, or the constitution of society has rendered necessary to them: it is unjust, it is irrational, whenever it chastises them for having followed those propensities, which example, which public opinion, which the institutions, which society itself conspires to give them. In short, the law is defective when it does not proportion the punishment to the real evil which society has sustained. The last degree of injustice, the acme of folly is, when society is so blinded as to inflict punishment on those citizens who have served it usefully.
The penal laws, in exhibiting terrifying objects to man, who must be supposed susceptible of fear, presents him with motives calculated to have an influence over his will. The idea of pain, the privation of liberty, the fear of death, are, to a being well constituted, in the full enjoyment of his faculties, very puissant obstacles, that strongly oppose themselves to the impulse of his unruly desires: when these do not coerce his will, when they fail to arrest his progress, he is an irrational being; a madman; a being badly organized; against whom society has the right to guarantee itself; against whom it has a right to take measures for its own security. Madness is, without doubt, an involuntary, a necessary state; nevertheless, no one feels it unjust to deprive the insane of their liberty, although their actions can only be imputed to the derangement of their brain. The wicked are men whose brain is either constantly or transitorily disturbed; still they must be punished by reason of the evil they commit; they must always be placed in the impossibility of injuring society: if no hope remains of bringing them back to a reasonable conduct—if every prospect of recalling them to their duty has vanished—if they cannot be made to adopt a mode of action conformable to the great end of association—they must be for ever excluded its benefits.
It will not be requisite to examine here, how far the punishments which society inflicts upon those who offend against it, may be reasonably carried. Reason should seem to indicate that the law ought to shew to the necessary crimes of man, all the indulgence that is compatible with the conservation of society. The system of fatalism, as we have seen, does not leave crime unpunished; but it is, at least, calculated to moderate the barbarity with which a number of nations punish the victims to their anger. This cruelty becomes still more absurd, when experience has shewn its inutility: the habit of witnessing ferocious punishments familiarizes criminals with the idea. If it be true that society possesses the right of taking away the life of its members—if it be really a fact, that the death of a criminal, thenceforth useless, can be advantageous for society, which it will be necessary to examine, humanity, at least, exacts that this death should not be accompanied with useless tortures; with which laws, perhaps in this instance too rigorous, frequently seem to delight in overwhelming their victim. This cruelty seems to defeat its own end, it only serves to make the culprit, who is immolated to the public vengeance, suffer without any advantage to society; it moves the compassion of the spectator, interests him in favor of the miserable offender who groans under its weight; it impresses nothing upon the wicked, but the sight of those cruelties destined for himself; which but too frequently renders him more ferocious, more cruel, more the enemy of his associates: if the example of death was less frequent, even without being accompanied with tortures, it would be more efficacious. If experience was consulted, it would be found that the greater number of criminals only look upon death as a bad quarter of an hour. It is an unquestionable fact, that a thief seeing one of his comrades, display a want of firmness under the punishment, said to him: "Is not this what I have often told you, that in our business, we have one evil more than the rest of mankind?" Robberies are daily committed, even at the foot of the scaffolds where criminals are punished. In those nations, where the penalty of death is so lightly inflicted, has sufficient attention been paid to the fact, that society is yearly deprived of a great number of individuals who would be able to render it very useful service, if made to work, and thus indemnify the community for the injuries they have committed? The facility with which the lives of men are taken away, proves the incapacity of counsellors; is an evidence of the negligence of legislators: they find it a much shorter road, that it gives them less trouble to destroy the citizens than to seek after the means to render them better.
What shall be said for the unjust cruelty of some nations, in which the law, that ought to have for its object the advantage of the whole, appears to be made only for the security of the most powerful? How shall we account for the inhumanity of those societies, in which punishments the most disproportionate to the crime, unmercifully take away the lives of men, whom the most urgent necessity, the dreadful alternative of famishing in a land of plenty, has obliged to become criminal? It is thus that in a great number of civilized nations, the life of the citizen is placed in the same scales with money; that the unhappy wretch who is perishing from hunger, who is writhing under the most abject misery, is put to death for having taken a pitiful portion of the superfluity of another whom he beholds rolling in abundance! It is this that, in many otherwise very enlightened societies, is called justice, or making the punishment commensurate with the crime.
Let the man of humanity, whose tender feelings are alive to the welfare of his species—let the moralist, who preaches virtue, who holds out forbearance to man—let the philosopher, who dives into the secrets of Nature—let the theologian himself say, if this dreadful iniquity, this heinous sin, does not become yet more crying, when the laws decree the most cruel tortures for crimes to which the most irrational customs gave birth—which bad institutions engender—which evil examples multiply? Is not this something like building a sorry, inconvenient hovel, and then punishing the inhabitant, because he does not find all the conveniences of the most complete mansion, of the most finished structure? Man, as at cannot be too frequently repeated, is so prone to evil, only because every thing appears to urge him on to the commission of it, by too frequently shewing him vice triumphant: his education is void in a great number of states, perhaps defective in nearly all; in many places he receives from society no other principles, save those of an unintelligible superstition; which make but a feeble barrier against those propensities that are excited by dissolute manners; which are encouraged by corrupt examples: in vain the law cries out to him: "abstain from the goods of thy neighbour;" his wants, more powerful, loudly declare to him that he must live: unaccustomed to reason, having never been submitted to a wholesome discipline, he conceives he must do it at the expence of a society who has done nothing for him: who condemns him to groan in misery, to languish in indigence: frequently deprived of the common necessaries requisite to support his existence, which his essence, of which he is not the master, compels him to conserve. He compensates himself by theft, he revenges himself by assassination, he becomes a plunderer by profession, a murderer by trade; he plunges into crime, and seeks at the risque of his life, to satisfy those wants, whether real or imaginary, to which every thing around him conspires to give birth. Deprived of education, he has not been taught to restrain the fury of his temperament—to guide his passions with discretion—to curb his inclinations. Without ideas of decency, destitute of the true principles of honour, he engages in criminal pursuits that injure his country: which at the same time has been to him nothing more than a step-mother. In the paroxysm of his rage, in the exacerbation of his mind, he loses sight of his neighbour's rights, he overlooks the gibbet, he forgets the torture; his unruly desires have become too potent—they have completely absorbed his mind; by a criminal indulgence they have given an inveteracy to his habits which preclude him from changing them; laziness has made him torpid: remorse has gnawed his peace; despair has rendered him blind; he rushes on to death; and society is compelled to punish him rigorously, for those fatal, those necessary dispositions, which it has perhaps itself engendered in his heart by evil example: or which at least, it has not taken the pains seasonably to root out; which it has neglected to oppose by suitable motives—by those calculated to give him honest principles—to excite him to industrious habits, to imbue him with virtuous inclinations. Thus, society frequently punishes those propensities of which it is itself the author, or which its negligence has suffered to spring up in the mind of man: it acts like those unjust fathers, who chastise their children for vices which they have themselves made them contract.
However unjust, however unreasonable this conduct may be, or appear to be, it is not the less necessary: society, such as it is, whatever may be its corruption, whatever vices may pervade its institutions, like every thing else in Nature, is willing to subsist; tends to conserve itself: in consequence, it is obliged to punish those excesses which its own vicious constitution has produced: in despite of its peculiar prejudices, notwithstanding its vices, it feels cogently that its own immediate security demands that it should destroy the conspiracies of those who make war against its tranquillity: if these, hurried on by the foul current of their necessary propensities, disturb its repose—if, borne on the stream of their ill-directed desires, they injure its interests, this following the natural law, which obliges it to labour to its own peculiar conservation, removes them out of its road; punishes them with more or less rigor, according to the objects to which it attaches the greatest importance, or which it supposes best suited to further its own peculiar welfare: without doubt, it deceives itself frequently, both upon these objects and the means; but it deceives itself necessarily, for want of the knowledge calculated to enlighten it, with regard to its true interests; for want of those, who regulate its movements possessing proper vigilance—suitable talents—the requisite virtue. From this it will appear, that the injustice of a society badly constituted, and blinded by its prejudices, is as necessary, as the crimes of those by whom it is hostilely attacked—by whose vices it is distracted. The body politic, when in a state of insanity, cannot act more consistently with reason, than one of its members whose brain is disturbed by madness.
It will still be said that these maxims, by submitting every thing to necessity, must confound, or even destroy the notions man forms of justice and injustice; of good and evil; of merit and demerit: I deny it. Although man, in every thing he does, acts necessarily, his actions are good, they are just, they are meritorious, every time they tend to the real utility of his fellows; of the society of which he makes a part: they are, of necessity, distinguished from those which are really prejudicial to the welfare of his associates. Society is just, it is good, it is worthy our reverence, when it procures for all its members, their physical wants, when it affords them protection, when it secures their liberty, when it puts them in possession of their natural rights. It is ill this that consists all the happiness of which the social compact is susceptible: society is unjust, it is bad, it is unworthy our esteem, when it is partial to a few, when it is cruel to the greater number: it is then that it multiplies its enemies, obliges them to revenge themselves by criminal actions which it is under the necessity to punish. It is not upon the caprices of political society that depend the true notions of justice and injustice—the right ideas of moral good and evil—a just appreciation of merit and demerit; it is upon utility, upon the necessity of things, which always forces man to feel that there exists a mode of acting on which he implicitly relies, which he is obliged to venerate, which he cannot help approving either in his fellows, in himself, or in society: whilst there is another mode to which he cannot lend his confidence, which his nature makes him to hate, which his feelings compel him to condemn. It is upon his own peculiar essence that man founds his ideas of pleasure and of pain—of right and of wrong—of vice and of virtue: the only difference between these is, that pleasure and pain make them instantaneously felt in his brain; he becomes conscious of their existence upon the spot; in the place of which, the advantages that accrue to him from justice, the benefit that he derives from virtue, frequently do not display themselves but after a long train of reflections—after multiplied experience and complicated attention; which many, either from a defect in their conformation, or from the peculiarity of the circumstances under which they are placed, are prevented from making, or at least from making correctly.
By a necessary consequence of this truism, the system of fatalism, although it has frequently been so accused, does not tend to encourage man in crime, to make remorse vanish from his mind. His propensities are to be ascribed to his nature; the use he makes of his passions depends upon his habits, upon his opinions, upon the ideas he has received in his education; upon the examples held forth by the society in which he lives. These things are what necessarily decide his conduct. Thus, when his temperament renders him susceptible of strong passions, he is violent in his desires, whatever may be his speculations.