of punishment, to consider the ends which are proposed by it: since the principle, which Grotius lays down as a self-evident one, cannot be shown to be true, without having recourse to the purposes, which punishment is is designed to answer.

are.

*

The ends of punIII. Our author takes notice of three ends, which ishment, what they are designed to be brought about by inflicting punishment; first, the benefit of the criminal himself; secondly, the benefit of the person who has suffered by the crime; and thirdly, the benefit of mankind in general.

The two last of these may well be included in the single end of preventing the criminal from offending again: for by this means the benefit either of the injured person, or of the rest of mankind, is produced as effectually as the punishment of the criminal can produce it, if we look no farther than the criminal himself.

Punishment has, indeed, sometimes a farther view, and is designed, not only to prevent or discourage the criminal who undergoes it, from offending again, but to deter others likewise from following his example, for fear of meeting with the same treatment, that he has met with. But this is only a secondary end of punishment; it may, where a criminal has deserved to suffer, make it prudent not to pardon him, and may engage us likewise to punish him in a public manner. But if our right to punish had nothing else to support it, we should never be able to reconcile it either with justice or with humanity. For certainly to bring any harm or loss upon one man, that we may not suffer the like from others, is, in respect of him upon whom it is brought, no better than a causeless harm or loss.

The first end of punishment, which Grotius mentions, is likewise but a secondary one. If there is no other reason for inflicting punishment, besides the amendment of the criminal; this alone is not sufficient to justify it, when men live out of civil society. In the liberty and equality of nature every man's interests are in his own hands; he may pursue his own good, or he may neglect it, at his own discretion. Others may advise him what course to take, as most for his benefit; but if he should choose to neglect his own benefit, they have no right to force him to pursue it; unless by his neglecting it they suffer some injury. Thus far, indeed, in the equality of nature, the amendment of the criminal comes within the view of them who punish him: they have a right, as we shall show presently, when he has done them any injury, to hinder him from doing so again: and as his amendment will answer this purpose, they may endeavour to correct his bad disposition, or may compel him to follow his own interest, in order to restrain him from breaking in upon theirs.

From what has been said it will appear, that the primary end of punishment is to prevent the criminal from offending again. And that the two secondary ends of it are to amend the criminal, and to deter others from following his example.

The justice of punishment plained.

IV. Whilst a man takes care to live innocently, ex- whilst he observes his duty so as not to hurt any one; we have no pretence to demand any security of him, that he will not hurt us. The law of nature is our security: he shows,

* Grot. Lib. II. Cap. XX. § VI.

by his behaviour, that he is sensible of his obligation to observe this law, and that it has authority enough with him to prevent him from doing wrong. But when he has once done wrong, when he has transgressed this law, and has shown, by doing so, either that it has no authority at all with him, or not sufficient authority to secure us against suffering by his means; it then becomes lawful for us to punish him; that is, it then becomes just, upon account of the evil which he has done, to inflict such evil upon him, as will prevent him from doing the like again. We cannot suppose the law of nature to forbid our taking such measures with a man, as his conduct has made necessary for us to take, in order to obtain the end, which the law itself has in view. The law of nature intends to secure us against injuries. When, therefore, a man has shown us, by his conduct, that he is disposed to injure us; this law leaves us at liberty to use such means as are necessary to prevent him.

The ways, by which we may prevent him from doing harm again, are by taking from him either the will to do it, or the opportunities of doing it, or the power of doing it. If we make him undergo some corporal pain, submit to some disgrace, or suffer some loss; this may discourage him from offending again, or may take from him the will to do harm.. If we shut him up in prison, or employ him in constant labour, or force him to live at a distance from us, which in a state of civil society would be banishment, he will have few or no opportunities of hurting us. Death, which is called capital punishment, effectually puts it out of his power to offend.

The reader, I imagine, does by this time see clearly, what sort of a right over the criminal our right of punishing is, and for what reason some previous crime is requisite to give us such a right. Our right of punishing is nothing more than a liberty of using such means, as are necessary to secure us against suffering any farther harm from a person, who, by having done harm already, has shown himself disposed to do it, if we do not take care to prevent him. But till he has shown himself to be thus disposed by what he has done already; that is, till he has committed a crime, we have no such right over him. All force that we make use of against him, all harm that we designedly do him, upon pretence of compelling him to observe his duty, when he always has observed it, or of preventing him from transgressing his duty, when he never has transgressed it, is unjust force, and causeless harm. Upon the whole, as on the one hand, no punishment can be just, where there is no crime; so, on the other hand, it would be impossible to show, even after a crime has been committed, that we have a right to punish, or that punishment is just, unless we show it from considering the end, for which it is inflicted.

V. If the right of punishment is what I have repre- Extraordinary torsented it above; if it is a liberty of using such means tures in capital as are necessary to secure us against suffering any punishments unfarther harm from a person, who, by having done harm justifiable. already, has shown himself disposed to do it, unless we take care to prevent him; it will be no easy matter, where we punish capitally, to justify any extraordinary tortures in the manner of taking away the criminal's life; such as impaling, crucifixion, or breaking on the wheel. The corporal pain, which a criminal is made to undergo, is not un

just, where his life is spared: because such pain may correct his bad inclination, and, by taking from him the will to do harm, may serve to secure us against his doing any for the future. But, certainly, when we take away his life, any pain that we give him, which might have been avoided, is so much causeless harm done to him. There is no occasion for this sort of discipline to be used in order to correct his evil diposition, when, by putting him to death, we take away from him the power of hurting us. The only use, that can be pretended in defence of such cruelties, is, that they will be a terror to others, who seeing what they are to suffer, if they do as he has done, will be more likely to be kept from doing so. And it must be owned that this purpose, where we find it necessary to be pursued, will be sufficient to justify us in carrying our right of punishing to the utmost extent; in not pardoning, where we should otherwise have been disposed to pardon; in allowing the criminal as little time, as may be, to fortify himself against the apprehension of death; in making his punishment as public as possible; in exposing his body or mangling it, after it is dead or insensible, and is by that means incapable of suffering any real harm.

But however we may design to terrify others; a right to use such means, as the criminal's behaviour has made necessary for us to use, in order to secure ourselves against any future harm which he may do us, cannot possibly be construed to be a right to use him in such a manner, as we may think necessary, in order to secure ourselves against any future harm which other men may do us. Nor do I see upon what other principle such a practice can be justified; unless it could be shown, that a right to punish is a right to treat a criminal in what manner we please.

from a what.

Obligation arising VI. We have seen what right arises over a man's crime, person upon account of his having committed a crime: and it is plain, from the nature of the right on one part, what obligation it lays upon him on the other part. A right in others to use such means as are likely to hinder him from doing harm again; that is, a right in them to punish him, implies an obligation on him to submit to punishment: for if he had any right, or was naturally at liberty to resist punishment, they could not naturally have any right to inflict it.

The justice of VII. * When justice is divided, as Grotius divides punishment is ne- it, into expletive and attributive; it may be a question gative. to which of these two sorts punishment belongs. If the whole notion of justice is included in this division of it, our common ways of speaking seem to imply, that punishment belongs to one of these two sorts, or that either expletive or attributive justice is exercised, when we inflict punishment. There is, certainly, the appearance of exercising some sort of justice, when we say, that punishment is justly due to a crime, and that we have done justice by inflicting it.

Now, expletive justice, or justice properly so called, consists in satisfying a man's strict demands, or in taking care that he shall have what is strictly due to him. And attributive justice, which differs little or nothing from benevolence, consists in giving him all that he has

* Grot. Lib. II. Cap. XX. § II.

fair and reasonable grounds to expect from us, though he cannot properly demand it.

Punishment can scarce be thought to belong to this latter sort of justice; not only because there is no appearance of any benevolent affection in punishment; but likewise because punishment, instead of giving the criminal what he could not claim, takes from him something, which he otherwise might have claimed; it takes from him his life, or his liberty, or the use of his limbs, or his natural freedom from pain.

One would rather be inclined to think, at first sight, that it belongs to expletive justice; the common ways of speaking about it already mentioned, would lead us to think so. And yet we shall find, upon inquiry, that these are rather improper ways of speaking: because the criminal has no claim to punishment, or such a claim as we may be sure he very willingly gives up; so as to make it no injustice to him, no withholding of any thing which he demands, if we were not to punish him. If expletive justice is done to any one in punishing, it is to them, who inflict the punishment, and not to him, who undergoes it: their right and not his is satisfied by what he suffers.

The fact is, that justice, in the original notion of it, is a negative duty; it consists in doing no causeless harm, and implies rather the not doing what is wrong, than the actual doing what is right. But out of this negative duty, a positive one arises: the same law which forbids us to do any causeless harm, must be understood to command us, where any one has suffered such harm by our means, to make him reparation. Now, though expletive justice, in its full extent, comprehends both the negative and the positive duties of justice; yet it is more commonly used to signify the duties of the latter sort, those duties of justice, in which we are active. And in this sense we may venture to say, that expletive justice is not exercised in punishing; the act of punishing does not satisfy any demand which the criminal had upon us. The justice of punishment is rather of the negative sort; it is called just only because it is not unjust; it is rather the not doing what is wrong, than the doing what is right. But as the inflicting punishment implies some action, and is not merely a forbearance to act: we are apt to consider the justice of it, as of the positive, and not as of the negative sort; to call it doing justice upon the criminal, or giving him what is his due, though in fact it is no more than not doing him injustice, or not taking from him any thing, which his crime has left him a claim to, if we have a mind to take it from him.

VIII. If it was at all necessary, that he, who pun- who may punish ishes a criminal, should be superior to the criminal, it in a state of natumust, in a state of natural liberty, have been unlawful ral liberty. for any one to punish another; or though there is no injustice in the notion of inflicting punishment, considered in itself, yet in the equality of nature, no person, for want of the necessary superiority, could justly have inflicted it: however lawful the action of punishing might be, when considered abstractedly from the agent; yet the institution of civil authority would be necessary to make it lawful for any person to do that action. But from what has been proved already, it will appear, that no such superiority of the person, who inflicts punishment over him, who suffers it, can be naturally required to make the action of punishing lawful in respect of the agent. Mankind in general, and he

in particular, who has suffered by a crime, have an interest in restraining such injustice, as they are all likely to suffer by at another time, if it is not restrained. It is for the common good, that whoever will not listen to the dictates of reason, and obey the law of nature, in consideration of its ordinary sanctions, should be compelled to do his duty, or be prevented from transgressing it, either by being made to feel such pain and inconvenience, in consequence of the mischief which he has done, as will incline him to behave better, or by being deprived of the opportunities or of the power to do otherwise. From this beneficial end of punishment we have shown, that the law of nature allows of punishment, or leaves all mankind at liberty to inflict it: and it is impossible, that all mankind should be at liberty to inflict punishment, and yet that it should, at the same time, be unlawful for any of them to inflict it.

* Some inconveniences might probably arise in the exercise of this universal right to punish, when the punishment is inflicted by the person, who is the immediate sufferer by what the criminal has done. His passions may be so much inflamed by what he has felt, as to mislead him in judging of the fact, and in proportioning the punishment to the guilt of it: or if he should be more calm, and not be transported by the more violent passions; yet he would be liable to be biassed in his judgment by some selfish regards; few men being so little prejudiced in their own favour, as to be fair judges in their own cause.

Nor would the exercise of this right be without its inconveniences, if it was left promiscuously to others, who are not so immediately affected by the crime. A promiscuous right to punish is not likely to be duly exercised; even setting aside the consideration of passion and selfishness. It requires more dilligence to search into the fact, more prudence to weigh all its circumstances, and more equity to proportion the punishment to it, than most men are masters of. Besides, as it would be unjust to punish a man twice, or oftener, for the same offence; that is, to restrain him by force from offending again, when he has been restrained already; so amongst a multitude of punishers it would be unlikely, that he should escape with being punished only once: because it is unlikely, that where all have an equal right, the rest should acquiesce in what any one of them has done; or that they should all pay such a deference to the diligence, and prudence, and equity of any one, as not to dispute his pretensions to inflict the punishment in preference to themselves.

But the inconveniences which may attend the exercise of a right, are no evidence, that such a right does not subsist: men may have a right of acting, notwithstanding it is possible for them frequently to abuse this right. If it was otherwise, we must be beholden to civil institutions, not only for the right of punishing, but for the rights of defence, and of demanding reparation: since either of these two rights are as likely to be abused as the right of punishing, where men are judges in their own cause. All that will follow from its being more probable that the right of punishing should be abused in the liberty of nature, than in a state of civil society, is no more than what might be

• Grot. Lib. II. Cap. XX. § VIII, IX.