THE MEASURE OF PUNISHMENTS.
We have seen that the true measure of crimes is the injury done to
society. This is one of those palpable truths which, however little
dependent on quadrants or telescopes for their discovery, and fully
within the reach of any ordinary intelligence, are yet, by a marvellous
combination of circumstances, only recognised clearly and firmly by
some few thinkers, belonging to every nationality and to every age. But
Asiatic ideas, and passions clothed with authority and power, have,
generally by imperceptible movements, sometimes by violent assaults on
the timid credulity of mankind, dissipated those simple notions, which
perhaps formed the first philosophy of primitive communities, and to
which the enlightenment of this age seems likely to reconduct us, but
to do so with that greater sureness, which can be gained from an exact
investigation into things, from a thousand unhappy experiences, and from
the very obstacles that militate against it.
They who have thought that the criminal’s intention was the true measure
of crimes were in the wrong. For the intention depends on the actual
impression of things upon a man, and on his precedent mental disposition,
things which vary in all men and in each man, according to the very
rapid succession of his ideas, his passions, and his circumstances. It
would, therefore, be necessary to form not only a particular code for
each citizen, but a fresh law for every crime. Sometimes with the best
intentions men do the greatest evil to society; and sometimes with the
very worst they do it the greatest good.
Others again measure crimes rather by the rank of the person injured
than by their importance in regard to the public weal. Were this the
true measure of crimes, any act of irreverence towards the Supreme Being
should be punished more severely than the assassination of a monarch,
whereas the superiority of His nature affords an infinite compensation
for the difference of the offence.
Lastly, some have thought that the gravity of an act’s sinfulness should
be an element in the measure of crimes. But an impartial observer of the
true relations between man and man, and between man and God, will easily
perceive the fallacy of this opinion. For the former relationship is one
of equality; necessity alone, from the clash of passions and opposing
interests, having given rise to the idea of the _public utility_, the
basis of human justice. But the other relationship is one of dependence
on a perfect Being and Creator, who has reserved to Himself alone the
right of being at the same time legislator and judge, and can alone
unite the two functions without bad effects. If He has decreed eternal
punishments to those who disobey His omnipotence, what insect shall
dare to take the place of Divine justice, or shall wish to avenge that
Being, who is all-sufficient to Himself, who can receive from things no
impression of pleasure nor of pain, and who alone of all beings acts
without reaction? The degree of sinfulness in an action depends on the
unsearchable wickedness of the heart, which cannot be known by finite
beings without a revelation. How, then, found thereon a standard for the
punishment of crimes? In such a case men might punish when God pardons,
and pardon when God punishes. If men can act contrary to the Almighty by
offending Him, they may also do so in the punishments they inflict.