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1847.] The Distinction between the Just and Expedient. 275 shows, what we most earnestly insist upon, that it can never be

i' expedient for civil governments to ignore moral distinctions, to renounce their hold upon the consciences of men, to discard the idea of guilt from their definition of crimes. But if they recog. nize the just at all, they must recognize it as the fundamental, supreme law; it will not condescend to serve in a subordinate po. sition. If, in that maxim, the just and the expedient are held to be synonymous terms, or the idea of the one be derived from that of the other, then the maxim amounts to just this: "nothing which is unjust can be just," or, “nothing which is inexpedient can be expedient”-a maxim from which no very mighty inference can be made either way. But, if the just and the expedient are understood to designate ideas radically distinct, then the truth of the maxim must rest on à priori grounds; it never could be established à posteriori. It is the expression of a faith which believes in the immutability and supremacy of moral distinctions, and in the wisdom and goodness of an Almighty Providence. For if the maxim be inverted thus: “no punishment which is expedient can be unjust;" its certainty, its evidence have vanished. To make a logical application of such a maxim, it is plain that, if you would avoid the vicious circle, you must first determine the question of expediency independently of all ideas of justice, and then bring your conclusion to the test. The maxim so applied must be unsafe and sometimes false, if you content yourself with any practical induction of facts in proof of the expediency in question;. and if a still more extensive induction is demanded, the maxim of course becomes useless. In short, the political expediency which undertakes to dispense with the ideas of morality, is the most inexpedient of all things, a perfect felo de se; the political expediency which would push away the basis of the just and right from beneath it, can neither support itself nor find anything else to rest upon; and can never come to a stable equilibrium until it has sunk to its own place in the bottomless pit. A very acute writer in a late number of the Democratic

Assuming that the questions of justice and expediency are to be ascertained by independent methods of proof, as slated above; not only will it not follow that whatever punishment is expedient must be either just or obligatory, but neither will it follow that “whatever punishment is just must be expedient.” It will most certainly follow, however, that whatever punishment is obligatory, whatever punishment it is the duty of society to inflict, must be expedient. Por it must be remembered that the opposite of the unjust, which designates what we are bound not to do, is, not the just, which designates what we are permitted to do, but duty, which designates what we are bound to do.

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Review, has undertaken to show, that all the principles of the common law are in direct opposition to those who maintain, that the ground and reason of punishment is the moral guilt of the offence. And how does he make this appear? Why, he says, that “all the great jurists have held it to be the great aim and object of penal law to prevent crime and to protect society;" and he then quotes Blackstone, who says that “ the end or final cause of human punishment is as a precaution against future offences of the same kind.” But what does all this prove as to the ground or reason of punishment ? Let a man read an indictment for murder or for any felony, drawn up according to the established formulas of the common law, and then ask himself what that law recognizes as the ground and reason of punishment. And the dicta of the commentators, fairly interpreted, agree perfectly with the principles and doctrines implied in those old formulas.

Blackstone, having defined a crime, says that, “in all cases it includes an injury; every public offence is also a private wrong and something more." As to the distinction of crimes into mala prohibita and mala in se, it is perfectly consistent with our views, so long as it is allowed, on the one hand, that it is morally wrong, wantonly, maliciously or selfishly to do anything which is injurious to society; and, on the other hand, that it is possible for society to inflict an unjust punishment; for that implies some rule of right above the mere will of society, and above the suggestions of any mere temporary and fluctuating expediency. “ Criminal law,” says Blackstone further, should be founded upon principles that are permanent, uniform and universal; and always conformable to the dictates of truth and justice, the feelings of humanity and the indelible rights of mankind; though it sometimes (provided there be no transgression of their eternal boundaries) may be modified, narrowed or enlarged, according to the local or occasional necessities of the State which it is meant to govern." In commenting upon the measure of punishments, he implies continually that crimes may differ in their intrinsic “ magnitude," "malignity," "atrocity,” “ enormity,” etc. ; and concludes that “where men see no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt."2 In all this Beccaria agrees with him. Lest this should be thought antiquated authori. ty, we quote from the current language of lawyers at the present



I Vol. XIX. p. 91.

Blackstone, Com. Book 4. ch. 1.


Why Society inflicts Punishment.


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day.“ All crime is sin, as well as misfortune; it is deliberate wickedness, which the criminal can avoid if he will; otherwise it is not crime." “ Prisons, therefore, should be regarded as, and should be made, places of punishment, to which none are to be sent who are not deliberately wicked.”!

We feel sure, therefore, that we are following no mere theo. logical prejudice, but the best expounders of the common law, the highest authorities in political ethics, and what is more, the plain dictates of common sense, in maintaining that the idea of just punishment always implies, as its ground or reason, the idea of demerit in the offender. The madman may be confined, chained, killed perhaps in an extreme emergency; yet he cannot be punished, whatever mischief he may have done. The ground of demerit is wanting.

But it must not be supposed that, wherever that ground exists, human laws should or may provide a punishment; that their punishments should be coëxtensive with ill-desert. These pun. ishments may be coëxtensive with crime; but only, provided crime be defined as implying not only the injurious act, but the forbidding law.

Among offences, faults or sins, those are selected for the pun. ishments of human laws which are assumed to be more or less remotely injurious to society. It is true that all faults and sins may be said to have this character. But, in the first place, it is not simply as faults or sins that they are punished by human laws; they are so punished only as considered in relation to the welfare of human society. The object, end or final cause for punishing them is to secure society from harm or injury; we say, negatively, to secure society from injury; not, positively, to promote the good of society. Punishments are not suffered as sacrifices for the public good. In the second place, not all wrong action, which can be shown to be injurious to society, should be made the object of human punishment. There is another limitation. It may be impossible from their very nature to ascertain and punish them; or the attempt so to do may cost more, or result in more harm to society, than the culpable actions them. selves. The remedy may be worse than the disease. The disease must then be left to take its course.

Actions, in themselves indifferent, may become wrong by being injurious to society. Among actions, which, being in themselves

'Law Reporter, Vol. 9. p.

427. VOL. IV. No. 14.


wrong or indifferent, are injurious to society, it is the business of the legislator to ascertain those which it is expedient to punish, and to prescribe the just degree of punishment. Although, therefore, the civil government may not punish sin as sin, it punishes that only as crime, which has in it the nature of sindemerit; it punishes on the ground of that demerit, with the design of protecting society; and the severity of its punishments should be graduated according to the enormity of offences, as measured both by their intrinsic character and by their injurious effects.

We confess that we agree with Franklin in the opinion that the thief, who thought it "hard that a man should be hung for merely stealing a horse,” had quite as much reason on his side as the judge, who is said to have coolly told him," he was to be hung not for stealing a horse, but in order that horses might not be stolen."

Beccaria, having reached the conclusion, “ Che l'unica e vera misura de' delitti è il danno fatto alla nazione; e però errarono coloro che credettero vera misura dei delitti l'intenzione di chi li commette;" concludes the paragraph with the following: " Qualche volta gli uomini colla migliore intenzione fanno il maggior male alla società : e alcune altre volte colla più cattiva volontà ne fanno il maggior bene."1 Strange he should not have seen that this last statement is a perfect refutation of his own exclusive measure of crimes (as related to human punishments), as well as of that other measure which he taxes as erroneous. Each taken separately is imperfect and false; both combined are perfect and conclusive.

That the common law recognizes the intention as constituting, in part, the measure of crime, is evident from the forms of indictment for felony; and especially from the distinctions made between the different degrees of murder and man-slaughter.

We have been surprised to find the authority of Coleridge quoted in proof that “ expediency is the sole foundation of penal law." We think it will be found, by examining the Essays of the Friend on “the Principles of Political Kuowledge,” that Coleridge has in view throughout, not penal laws, but the origin of government, constitutional arrangements, political and civil institutions in the more general sense, (as being monarchical or democratical, for example ;) all which he doubtless held to be

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1847.) Coleridge's Views.

279 matters not of absolute, inalienable right, but of mere prudence and expediency.

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'It is worthy of note that the writer in the Democratic Review, already referred to, cites Coleridge as saying (in Essay III): “Every institution of govern nent needs no other justification than a proof that under the particular circumstances it is EXPEDIENT." And this the reviewer would evidently have us apply to penal laros. Now, in our edition of Coleridge, the passage reads thus : " Every institution of national origin need no other justification,” etc. The difference strikes us as significant. Are penal laws institutions of national origin? Again, the reviewer continues to quote Coleridge as “ declaring himself a zealous advocate for deriving the origin of all government from human prudence, and of deeming that to be just which experience has proved to be expedient." " That to be just ?”—that" what? Anything in general ? Such an idea would have been as abhorrent to Coleridge's mind as hell to heaven.“ That" penalty? There is nothing to authorize this in the context. It must mean, “ thatgovernment, or form of government; and if so, how does it appear that Coleridge makes "expediency the sole foundation of penal law?"

But the truth is, from Coleridge in the different moods of his mind, as from the sacred Scriptures, the most discordant doctrines may be proved by detached quotations. To ascertain his true meaning, especially when treating on practical subjects, we must always bear in mind two things: 1st, the general tone and spirit of his mind; and 2nd, the particular point of antithesis at which he aims in a given case ; otherwise we may make citations from his writings which he himself would have considered libellous.

The strongest passage, we think, which the reviewer could have quoted from the “ Friend,” in favor of his views, occurs on page 173 (Marsh's ed.). " Expediency founded on experience and particular circumstances .... must be admitted as the maxim of all legislation and the ground of all legislative power." But here, it will be seen by the context, he has in view such things as “the right of suffrage,” which he denies to be either a universal or natural right; so far as it exists, he holds it to be a matter of expediency, and founded upon properly." From my earliest manhood,” he says, “it was an axiom in politics with me, that in every country where property prevailed, property must be the grand basis of government,” (p. 190). “ To property, therefore, and to its inequalities all human laws directly or indirectly relate, which would not be equally leves in a state of nature,(p. 171). [To which class would capital punishment for murder belong?)

“ Thus as perspicuously as I could .... I have pointed out the one only ground on which the constitution of GOVERNMENTs can be either condemned or justified by wise men,” (p. 213). So far as governments have the basis on which Coleridge thus insisted, viz. property, their fundamental rule is, of course, expediency; who doubts it? But does capital punishment for murder come within the province of such an idea of government? That Coleridge cannot be supposed to refer to penal laws, in the sense alleged by the Reviewer, is evident from the following: “the intention of the agent, [in case of a charge of libel,] whenever it can be independently or inclusively ascertained, must be allowed a great share in determining the character of the acLion; unless the law is not only to be divorced from moral justice, (according to

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