The two antagonist theories of morals, like many other antagonist theories, are both right and both wrong. The a priori school has its truth; the a posteriori school has its truth; and for the proper guidance of conduct, there must be due recognition of both. On the one hand, it is asserted that there is an absolute standard of rectitude; and, respecting certain classes of actions, it is rightly so asserted. From the fundamental laws of life and the conditions of social existence, are deducible certain imperative limitations to individual action—limitations which are essential to a perfect life, individual and social; or, in other words, essential to the greatest happiness. And these limitations, following inevitably as they do from undeniable first principles, deep as the nature of life itself, constitute what we may distinguish as absolute morality. On the other hand it is contended, and in a sense rightly contended, that with men as they are and society as it is, the dictates of absolute morality are impracticable. Legal control, which involves infliction of pain, alike on those who are restrained and on those who pay the cost of restraining them, is proved by this fact to be not absolutely moral; seeing that absolute morality is the regulation of conduct in such way that pain shall not be inflicted. {153}
Wherefore, if it be admitted that legal control is at present indispensable, it must be admitted that these a priori rules cannot be immediately carried out. And hence it follows that we must adapt our laws and actions to the existing character of mankind—that we must estimate the good or evil resulting from this or that arrangement, and so reach, a posteriori, a code fitted for the time being. In short, we must fall back on expediency. Now, each of these positions being valid, it is a grave mistake to adopt either to the exclusion of the other. They should be respectively appealed to for mutual qualification. Progressing civilization, which is of necessity a succession of compromises between old and new, requires a perpetual readjustment of the compromise between the ideal and the practicable in social arrangements: to which end both elements of the compromise must be kept in view. If it is true that pure rectitude prescribes a system of things too good for men as they are; it is not less true that mere expediency does not of itself tend to establish a system of things any better than that which exists. While absolute morality owes to expediency the checks which prevent it from rushing into utopian absurdities; expediency is indebted to absolute morality for all stimulus to improvement. Granted that we are chiefly interested in ascertaining what is relatively right; it still follows that we must first consider what is absolutely right; since the one conception presupposes the other. That is to say, though we must ever aim to do what is best for the present times, yet we must ever bear in mind what is abstractedly best; so that the changes we make may be towards it, and not away from it. Unattainable as pure rectitude is, and will long continue to be, we must keep an eye on the compass which tells us whereabout it lies; or we shall otherwise wander in the opposite direction.
Illustrations from our recent history will show very conclusively, we think, how important it is that {154} considerations of abstract expediency should be joined with those of concrete expediency—how immense would be the evils avoided and the benefits gained, if a posteriori morality were enlightened by a priori morality. Take first the case of free trade. Until recently it has been the practice of all nations, artificially to restrict their commerce with other nations. Throughout past centuries this course was defensible as conducing to safety. Without saying that law-givers had the motive of promoting industrial independence, it may yet be said that in ages when national quarrels were perpetual, it would not have been well for any people to be much dependent on others for necessary commodities. But though there is this ground for asserting that commercial restrictions were once expedient, it cannot be asserted that our corn-laws were thus justified: it cannot be alleged that the penalties and prohibitions which, until lately, hampered our trade, were needful to prevent us from being industrially disabled by a war. Protection in all its forms was established and maintained for other reasons of expediency; and the reasons for which it was opposed and finally abolished were also those of expediency. Calculations of immediate and remote consequences were set forth by the antagonist parties; and the mode of decision was by a balancing of these various anticipated consequences. And what, after generations of mischievous legislation and long years of arduous struggle, was the conclusion arrived at, and since justified by the results? Exactly the one which abstract equity plainly teaches. The moral course proves to be the politic course. That ability to exercise the faculties, the total denial of which causes death—that liberty to pursue the objects of desire, without which there cannot be complete life—that freedom of action which his nature prompts every individual to claim, and on which equity puts no limit save the like freedom of action of other individuals, involves, among other corollaries, freedom of exchange. {155} Government which, in protecting citizens from murder, robbery, assault or other aggression, shows us that it has the all-essential function of securing to each this free exercise of faculties within the assigned limits, is called on, in the due discharge of its function, to maintain this freedom of exchange; and cannot abrogate it without reversing its function, and becoming aggressor instead of protector. Thus, absolute morality would all along have shown in what direction legislation should tend. Qualified only by the consideration that in turbulent times they must not be so carried out as to endanger national life, through suspensions in the supply of necessaries, these a priori principles would have guided statesmen, as fast as circumstances allowed, towards the normal condition. We should have been saved from thousands of needless restrictions. Such restrictions as were needful would have been abolished as soon as was safe. An enormous amount of suffering would have been prevented. That prosperity which we now enjoy would have commenced much sooner. And our present condition would have been one of greater power, wealth, happiness, and morality.
Our railway-politics furnish another instance. A vast loss of national capital has been incurred, and great misery has been inflicted, in consequence of the neglect of a simple principle clearly dictated by abstract justice. Whoso enters into a contract, though he is bound to do that which the contract specifies, is not bound to do some other thing which is neither specified nor implied in the contract. We do not appeal to moral perception only in warranty of this position. It is one deducible from that first principle of equity which, as above pointed out, follows from the laws of life, individual and social; and it is one which the accumulated experience of mankind has so uniformly justified, that it has become a tacitly-recognized doctrine of civil law among all nations. In cases of disputes about agreements, the question in each case brought to trial {156} always is, whether the terms bind one or other of the contracting parties to do this or that; and it is assumed, as a matter of course, that neither of them can be called upon to do more than is expressed or understood in the agreement. Now this almost self-evident principle has been wholly ignored in railway-legislation. A shareholder, uniting with others to make and work a line from one specified place to another specified place, binds himself to pay certain sums in furtherance of the project; and, by implication, agrees to yield to the majority of his fellow-shareholders on all questions raised respecting the execution of this project. But he commits himself no further than this. He is not required to obey the majority concerning things not named in the deed of incorporation. Though with respect to the specified railway he has bound himself, he has not bound himself, with respect to any unspecified railway which his co-proprietors may wish to make; and he cannot be committed to such unspecified railway by a vote of the majority. But this distinction has been wholly passed over. Shareholders in joint-stock undertakings have been perpetually involved in other undertakings subsequently decided on by their fellow-shareholders; and, against their will, have had their properties heavily mortgaged for the execution of projects that were ruinously unremunerative. In every case the proprietary contract for making a particular railway, has been dealt with as though it were a proprietary contract for making railways! Not only have directors thus misinterpreted it, and not only have shareholders allowed it to be thus misinterpreted, but legislators have so little understood their duties as to have endorsed the misinterpretation. To this simple cause has been owing most of our railway-companies’ disasters. Abnormal facilities for getting capital have caused reckless competition in extension-making and branch-making, and in needless opposition lines, got up to be purchased by the companies they threatened. Had each new scheme been {157} executed by an independent body of shareholders, without any guarantee from another company—without any capital raised by preference shares—there would have been little or none of the ruinous expenditure we have seen. Something like a hundred millions of money would have been saved, and thousands of families preserved from misery, had the proprietary-contract been enforced according to the dictates of pure equity.
These cases go far to justify our position. The general reasons we gave for thinking that the ethics of immediate experience must be enlightened by abstract ethics, to ensure correct guidance, are strongly enforced by these instances of the gigantic errors which are made when the dictates of abstract ethics are ignored. The complex estimates of relative expediency, cannot do without the clue furnished by the simple deductions of absolute expediency.
We propose to study the treatment of criminals from this point of view. And first, let us set down those temporary requirements which have hitherto prevented, and do still, in part, prevent the establishment of a just system.
The same average popular character which necessitates a rigorous form of government, necessitates also a rigorous criminal code. Institutions are ultimately determined by the natures of the citizens living under them; and when these citizens are too impulsive or selfish for free institutions, and unscrupulous enough to supply the requisite staff of agents for maintaining tyrannical institutions, they are proved by implication to be citizens who will tolerate, and will probably need, severe forms of punishment. The same mental defect underlies both results. The character which originates and sustains political liberty, is a character swayed by remote considerations—a character not at the mercy of immediate temptations, but one which contemplates the consequences likely to arise in future. We have only to remember that, among ourselves, a political encroachment is {158} resisted, not because of any direct evil it inflicts, but because of the evils likely hereafter to flow from it, to see how the maintenance of freedom presupposes the habit of weighing distant results, and being chiefly guided by them. Conversely, it is manifest that men who dwell only in the present, the special, the concrete—who do not realize with clearness the contingencies of the future—will put little value on those rights of citizenship which profit them nothing, save as a means of warding off unspecified evils that can possibly affect them only at a distant time in an obscure way. Well, is it not obvious that the forms of mind thus contrasted, will require different kinds of punishment for misconduct? To restrain the second, there must be penalties which are severe, prompt, and specific enough to be vividly conceived; while the first may be deterred by penalties which are less definite, less intense, less immediate. For the more civilized, dread of a long, monotonous, criminal discipline may suffice; but for the less civilized there must be inflictions of bodily pain and death. Thus we hold, not only that a social condition which generates a harsh form of government, also generates harsh retributions; but also, that in such a social condition, harsh retributions are requisite. And there are facts which illustrate this. Witness the case of one of the Italian states, in which the punishment of death having been abolished in conformity with the wish of a dying duchess, assassinations increased so greatly that it became needful to re-establish it.
Besides the fact that in the less-advanced stages of civilization, a bloody penal code is both a natural product of the time and a needful restraint for the time, there must be noted the fact that a more equitable and humane code could not be carried out from want of fit administration. To deal with delinquents not by short and sharp methods but by such methods as abstract justice indicates, implies a class of agencies too complicated to exist in a low society, {159} and a class of officers more trustworthy than can be found among its citizens. Especially would the equitable treatment of criminals be impracticable where the amount of crime was very great. The number to be dealt with would be unmanageable. Some simpler method of purging the community of its worst members becomes, under such circumstances, a necessity.
The inapplicability of an absolutely just system of penal discipline to a barbarous or semi-barbarous people, is thus, we think, as manifest as is the inapplicability of an absolutely just form of government to them. And in the same manner that, for some nations, a despotism is warranted; so may a criminal code of the extremest severity be warranted. In either case the defence is, that the institution is as good as the average character of the people permits—that less stringent institutions would entail social confusion and its far more severe evils. Bad as a despotism is, yet where anarchy is the only alternative, we must say that, as anarchy would bring greater suffering than despotism brings, despotism is justified by the circumstances. And similarly, however inequitable in the abstract were the beheadings, crucifyings, and burnings of ruder ages, yet, if it be shown that, without penalties thus extreme, the safety of society could not have been insured—if, in their absence, the increase of crime would have inflicted a larger total of evil, and that, too, on peaceable members of the community; then it follows that morality warranted this severity. In the one case, as in the other, we must say that, measured by the quantities of pain respectively inflicted and avoided, the course pursued was the least wrong; and to say that it was the least wrong is to say that it was relatively right.
But while we thus admit all that can be alleged by the defenders of Draconian codes, we go on to assert a correlative truth which they overlook. While fully recognizing the evils that must follow the premature establishment of a {160} penal system dictated by pure equity, let us not overlook the evils that have arisen from altogether rejecting the guidance of pure equity. Let us note how terribly the one-sided regard for immediate expediency has retarded the ameliorations from time to time demanded.