Of The Proper Subjects of Penal Animadversion.

From: Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).
Author: Jonathan Dymond
Published: Harper & Brothers 1834 Philadelphia

  THE man who compares the actions which are denounced as wrong in the moral law with those which are punished by civil government will find that they are far from an accordance. The moral law declares many actions to be wicked which human institutions do not punish; and there are some that these institutions punish, of which there is no direct reprehension in the communicated will of God.

  It is not easy to refer all these incongruities to the application of any one general principle of discrimination. You cannot say that the magistrate adverts only to those crimes which are pernicious to society,—for all crimes are pernicious. Nor can you say that he selects the greatest for his animadversion, because he punishes many of which the guilt is incomparably less than others which he passes by. Nor, again, can you say that he punishes only those in which there is an injured and complaining party; for he punishes some of which all the parties were voluntary agents. Lastly,—and what seems at first view very extraordinary,—we find that civil governments create offences which, simply regarded, have no existence in the view of morality; and punish them with severity, while others, unquestionably immoral, pass with impunity.

  The practical rule which appears to be regarded in the selection of offences for punishment is founded upon the existing circumstances of the community.

  Offences against which, from any cause, the public disapprobation is strongly directed are usually visited by the arm of, the civil magistrate,—partly because that disapprobation implies that the offence disturbs the order of society, and partly because, in the case of such offences, penal animadversion is efficient and vigorous, by the ready co-operation of the public. Thus it is with almost all offences against property, and with those which personally injure or alarm us. Every man is desirous of prosecuting a house-breaker, for he feels that his own house may be robbed. Every man is desirous of punishing an assault or a threatening letter, because he considers that his peace may be disturbed by one and his person injured by the other. This general and strong reprobation makes detection comparatively easy, and punishment efficient.

  Examples of the contrary kind are to—be found in the crimes of drunkenness, of profane swearing, of fornication, of duelling. Not that we have any reason to expect that at the bar of heaven some of these crimes will be at all less obnoxious to punishment than the former,—but because, from whatever reason, the public very negligently co-operate with law in punishing them, and manifest little desire to see its penalties inflicted. An habitual drunkard does much more harm to his family and to the world than he who picks my pocket of a guinea,—yet we raise a hue and cry after the thief, and suffer the other to become drunk every day. So it is with duelling and fornication. The public know very well that these things are wrong, and pernicious to the general welfare; but scarcely any one will prosecute those who commit them. The magistrate may make laws, but in such a state of public feeling they will remain as a dead letter; or, which perhaps is as bad, be called out upon accidental and irregular occasions.

  Another rule which appears to be practically, though not theoretically, adopted is, to punish those offences of which there is a natural prosecutor. Thus it is with every kind of robbery and violence. Some one especially is aggrieved: the sense of grievances induces a ready prosecution; and whatever is readily prosecuted by the people will generally be denounced in the laws of the state. The opposite fact is exhibited in the case of many offences against the public, such as smuggling, and generally in the case of all frauds upon the revenue. No individual is especially aggrieved (unless in the case of regular dealers whose business is injured by illicit trading), and the consequence is either that numberless frauds of this kind are suffered to pass with impunity, or that the government is obliged to employ persons to detect the offenders and to prosecute them itself. There are some crimes which seem in this respect of an intermediate sort,—where there is a natural prosecutor and yet where that prosecutor is not the most aggrieved person. This is instanced in the case of seduction. The father prosecutes, but he does not sustain one-half the injury that is suffered by the daughter. There are obvious reasons why the moat injured party should be at beet an inefficient prosecutor; and the result is consonant,—that this offence is frequently not punished at all, or, as is the case in our own country, it is punished very slightly,—so slightly that in no case does the person of the offender suffer. This lenity does not arise from the venialness of this crime, or of that of adultery. They are among the most enormous that can be perpetrated by man. Of the less flagitious of the two, it has been affirmed “that not one-half of the crimes for which men suffer death, by the laws of England are so flagitious as this.”¹ This enormity is distinctly asserted in both the Old Testament and the New: in the first, adultery was punished with death; in the second, both this and fornication, which is less criminal than seduction, is repeatedly assorted with the greatest crimes, and alike threatened with the tremendous punishments of religion.

  Such considerations lead the inquirer to expect that the offences which are denounced in a statute-book will bear some relation to the state of virtue in the people. The more virtuous the people are the greater will be the number of crimes which can be efficiently visited by the arm of power. Thus, during some part of the seventeenth century, that is, during the interregnum, adultery was punished with death; and it may be remarked, without paying a compliment to the religion or politics of those times, that the actual practice of morality was then, among a large proportion of the nation, at a higher standard than it is now. No society exists without some species of penal justice,—from that of a gang of thieves to that of a select and pious Christian community. The thieves will punish some crimes, but they will be few. The virtuous community will punish or, which for our present purpose is the same thing, animadvert upon very many. In a well-ordered family many things are held to be offences, and are noticed as such by the parent, which in a vicious family pass unregarded.

  When, therefore, we contemplate the unnumbered offences against morality which the magistrate does not attempt to discourage, we may take comfort from hoping that as the virtue of mankind increases, it may, increase in more than a simple ratio. As the public become prepared for it, governments will lend their aid; and thus they who have now little restraint from some crimes but that which exists in their own minds may hereafter be deterred by the fear of human penalty. And this induces the observation, that to throw obstacles in the way of increasing the subjects of penal animadversion is both impolitic and wrong. This unhappily, has frequently been done in our own country. Some public writers (writers not of great eminence to be sure), have taken great pains to ridicule legislation respecting cruelty to animals,—and the endeavours on the part of well-disposed men to enforce almost obsolete statutes against some other common crimes. There are, surely, a sufficiency of obstacles to the extension of the subjects of penal legislation, without needlessly adding more. Besides, these men directly encourage the crimes. To sneer at him who prosecutes a ferocious man for cruelty to an animal, is to encourage cruelty. When a man is brought before a magistrate for profaneness,—to joke about how the culprit swore in the court, is to teach men to be profane.

  That which we have called, in the commencement of this chapter, the creation of offences, demands peculiar solicitude on the part of a government. By a created offence, I mean an act which, but for the law, would be no offence at all. Of this class are some offences against the game-laws. He who on another continent was accustomed, without blame, to knock down hares and pheasants as he found occasion, would feel the force of this creation of offences when, on doing the same thing in England, he was carried to a jail. The most fruitful cause of these factitious offences is in extensive taxation. When a new tax is imposed, the legislature endeavors to secure its due payment by requiring or forbidding certain acts. These acts, which antecedently were indifferent, become criminal by the legislative prohibition, or obligatory by the legislative command; and non-compliance is therefore punished as an offence by the civil power.² There is no more harm in a man’s buying brandy in France and bringing it to England than in buying a horse of his neighbour. The law lays a duty upon brandy, prohibits any man from bringing it to the country except through a custom-house, and treats as criminals those who do.

  Now we do not affirm that those who commit these created offences do not absolutely offend against morality. They do offend; for in general every evasion or violation of the laws of the state is an immoral act. But this does not affect the truth that such offences should be as few as they can be. The reasons are, first, that they are encroachments upon civil liberty, and secondly—which is our present concern—that they are pernicious to the public. Men perceive the distinction between moral crimes and legal crimes without perhaps ever having inquired into its foundation. And they act upon this perception. He who has been convicted of killing hares, or evading taxes, or smuggling lace, is commonly willing to tell you of his exploits. He who has been convicted of stealing from his neighbour hangs down his head for shame. The sanctions of law ought to approve themselves to the common judgments of mankind. Whatever the state denounces, that the public ought to feel to be criminal, and to be willing to suppress. The penalties of the law ought to be accompanied in men’s minds by the sanction of morality. They should feel that to be punished by a magistrate was tantamount to being a bad man. When, instead of this, there is an intricate admixture,—when we see some things which are, simply regarded, innocent, visited by the same punishment as others that all men feel to be wicked, men are likely to feel a diminished respect for penal law itself. They learn to regard the requisitions of law as having little countenance from rectitude; and think that to violate them, though it may be dangerous, is not wrong. It does not approve itself, as a whole, to the public judgment; and there are many perhaps who feel, on this account, a diminished respect for penal institutions, without being able to assign the reason.

  In the extension of this political and moral evil the greatest of all agents is war. With respect to the creation of offences, it stands sui generis, and converts a greater number of indifferent actions into punishable ones than all other agents united. War produces the extensive taxation of which we speak; but the practical system has offences peculiar to itself,—offences, which the moral law of our Creator never denounced, but which the system of war visits with tremendous punishments. Adam Smith adverts to this deplorable circumstance. He says, that the punishment of death to a sentinel who falls asleep upon his watch, “How necessary soever, always appears to be excessively severe. The natural atrocity of the crime seems to be so little, and the punishment so great, that it is with great difficulty that our heart can reconcile itself to it.”³ Nor will the heart nor ought the heart ever to be reconciled to it. It is, I know, perfectly easy to urge arguments in its favour from expediency and the like; but urge these arguments as you may, the uninitiated or unhardened heart will never be convinced: and it is vain to tell us that that is right which the immutable dictates in our minds pronounce to be wrong. There are, indeed, few spectacles more calculated to sicken the heart and to make it tum in disgust away from the monstrousness of, human institutions than a contemplation of martial law,—a code which not only creates a multiplicity of offences that were never prohibited by our merciful Parent, but which visits the commission of those offences with inflictions that ought not to be so much as named among a Christian people.

  While then the philanthropist hopes that some of those intrinsically criminal actions to which human penalties are not attached will one day become the object of their animadversions, he hopes that this other class, which are not intrinsically vicious, will gradually be expunged from among penal laws. Both the additions to, and the deductions from, the system which morality dictates are the result of the impure or corrupt condition of society.

  Meantime some approaches to a juster standard to regulate penal animadversion may be made, by transferring, in our own country, some offences from the civil to the criminal courts. An instance exists in the crime of seduction and its affinities. This crime, whether we regard it simply or in its consequences, or in the deliberation with which it is committed, is, as we have just seen, excessively flagitious. How then does it happen that its perpetration is regarded as a matter for the cognizance only of legal courts, and for the punishment only of a pecuniary fine? What should we say to that mode of justice which allowed the ruffian who assaults your person to escape by paying money? Yet even a severe assault does not approach in enormity to the crime of which we speak. I would punish seducers in their persons. I would send them to prison like other malefactors; and oblige them to labour, or subject them to that system of prison—discipline which might give hope (if any thing could give hope) of reformation. Alas! if there is no reason for not acting thus, there is a motive. That class of society to whom the framing of laws is intrusted regard the crime with but very ambiguous detestation. “The law of honour,” it is said, “applauds the address of a successful intrigue.” How should they who value themselves upon being the subjects of the law of honour wish to consign a man to prison for that which the law of honour applauds? I doubt not that if seduction were confined to low-life the legislature would quickly send seducers to the criminal courts. Would they were sent! The very idea of the punishment would, among gay men in the superior walks of life, often prevent the crime. To be seized by police! To be carried to a jail! To be brought to the bar with thieves and murderers! To be sentenced by the court! To be carried back to labour in a prison, or to.be embarked for New South Wales! The idea I say of this would go far to prevent the perpetration of this abandoned crime.

  Duelling is another of the crimes which should be prosecuted in criminal courts. It is indeed prosecuted there if anywhere; but it is seldom prosecuted at all. The ultimate cause is easily discovered:—the crime is sanctioned by the law of honour. Like the preceding, if it were practised only by the poor it would quickly be visited by the arm of the law. Of the probability of this we have an illustration in the case of boxing. One or more of the judges have recently declared, that if a man is convicted of having caused another’s death in a boxing-match, they will inflict the sentence which the law denounces upon man-slaughter. The law of honour has no voice here; and here the voice of reason and common sense is regarded. Make boxing-matches, like duelling, a part of the system of the law of honour, and we shall hear very little about the punishment of manslaughter. The reader saw, in the last essay, what an influence the law of honour bad in a case of duelling on the mind and on the charge of a judge on the Scotch bench. These things suggest sorrowful reflections!

  Much and very contradictory declamation is often employed respecting die treatment which is due to those who become insolvent. By our present law the debtor may be arrested, that is, he may be imprisoned; on which account it may be allowable to range the discussion under the bead of penal law. Imprisonment for debt is, in effect, a penalty, although it be not inflicted by a court of justice.

  One class of persons declaims against the oppression of immuring men ill a prison who have committed no crime; against the cruelty of the relentless creditor who, when misfortune has overtaken a fellow creature, adds to his miseries the terrors of—the law, and deprives him of the opportunity of exertion and his family of the means of support: and all this it is said is done without obtaining any other advantage to the persecutor than the gratification of his resentment of malignity. Another class expatiates upon the unprincipled fraud which is committed upon industrious traders by spendthrifts or villains,—upon the hardship of leaving honest men at the mercy of every idle or profligate person who has address enough to obtain credit, and upon the absurdity of that philanthropy which would prevent them from deterring him from his frauds by the terrors of a jail.

  To determine between these vehement and conflicting opinions, the great question is, Whether a debtor is a criminal? If he is, there is no reason why he should not be treated as a criminal: and if he is not, there is no reason why an innocent man should meet the fate which is due only to the guilty. These contradictory opinions appear to result from the circumstance that one set of persons regard insolvents as criminals and the other as unfortunate men. The truth however is, that many are of one class and many of the other. It is therefore no subject of surprise that when one set of persons view one side of the question and another the opposite, they should involve themselves and the subject is conflict and contradiction.

  From these considerations one conclusion appears plainly to follow,—that no undiscriminating law upon the subject can be even tolerably just; that to concede the power of imprisoning all debtors is to permit oppression; that to deny it to any is to withhold punishment from guilt. In order therefore to attain the ends of justice, it is absolutely indispensable that discrimination should be made in every individual case.

  Suppose then the first legal step towards enforcing payment from a debtor were, not to obtain a writ, but to summon him before a magistrate. If he refuses to attend to the summons, a warrant might be granted for his arrest, since the reasonable inference would be, that his motives for withholding payment, or the causes by which he had been unable to pay, were such as he was afraid to acknowledge. If he attended, the case would be heard,—not from lawyers, but from the parties themselves. Supposing it appeared that the debtor was capable of paying, but unwilling, or that, although then unable, his inability had been occasioned by manifest misconduct: let him be committed to prison. And why? Because he is an offender against public justice, and like other offenders should await his punishment.

  Supposing again it appeared that the debtor could not pay, and that his insolvency involved no fault: let him be regarded as a man overtaken by misfortune, as a man whom it would be oppressive and wrong to punish, and who therefore should be set at large. His property of course would be secured.

  Discrimination of this kind, whatever might be the mode of its exercise, appears to be a sine qua non of the administration of justice. It is exceedingly obvious; that when actions of which the external consequences may be the same, result some from innocent and some from criminal causes, they should not receive the same treatment at the hand of the law: just as he who accidentally occasions a man’s death should not receive the same treatment as he who commits murder. Now this manifest requisite of justice is in no other way attainable in the case of insolvency than by investigating the conduct of every individual man.

  When the criminal debtors are committed like other criminals to prison, they should be regarded as public offenders, and as such become amenable to penal animadversion. Courts of a simple construction might perhaps be erected for this class of offenders, which might possess the power of awarding such punishments for the various degrees of guilt as the law thought fit to prescribe. Nor does there appear any reason for deviating materially from those species of punishment which are properly employed for other offenders, because insolvency is occasioned by guilt in endless gradations, and sometimes by great crime. The number of insolvents who are entirely innocent is comparatively small, and of those who are not innocent the gradations of criminality are without end. Some are incautious or imprudent, some are heedlessly and some shamefully negligent, and some again are atrociously profligate. The whole amount of injury which is inflicted upon the people of this country by criminal insolvency is much greater than that which is inflicted by any one other crime which is ordinarily punished by the law. Neither swindling, nor forgery, nor robbery, in their varieties, produces an equal amount of mischief, To every single individual who loses his property by theft or fraud there are probably twenty who lose it by criminal debtors. Such facts evidently furnish weighty considerations for the legislator as the guardian of the public welfare; and that system of jurisprudence is surely defective which allows so much public mischief almost without restraint. Justice and policy alike indicate the necessity of more efficient security against the want of probity in debtors than has hitherto been furnished by the law.

  A man who begins business with a thousand pounds of his own, and who keeps a stock of goods to the value of fifteen hundred, is obliged in honestly to insure. If he does not insure, and a fire destroys his goods, so that his creditors lose five hundred pounds, he surely is chargeable with a moral offence. It cannot be just knowingly to endanger the loss of other men’s property which has been entrusted in the confidence of its repayment. But if such a man commits injustice towards others, upon what grounds is he to be exempted from the rightful consequence of injustice? We would not speak of such a man as a criminal, nor affirm that he deserves severity of punishment, but we say that since he has needlessly and negligently sacrificed the property of other men, it is fit that the penal legislator should notice and discountenance his offence.

  Another trader, without any vicious intention, “neglects his business.” His customers by degrees leave him. Year passes after year with an income continually diminishing, until at length he finds that his property is less than his debts. This man is more vicious than the former, and should be visited by a greater amount of punishment. Another, with a prosperous business and no great vices, allows a more expensive domestic establishment than his income warrants. His property gradually lapses away, and at last he cannot pay twenty shillings in the pound to his creditors. Can it be disputed, that a man who knows that he is in a course of life which will probably end in defrauding others of their property, should be regarded in any other light than as an offender against justice? And can it be unreasonable for the jurisprudence of a community to act towards such an offender as if he were a dishonest man?

  Another engages in speculations which endanger the property of his creditors, and which, if they do not succeed, will defraud them. Such speculations certainly are dishonest; and when they prove unsuccessful, he who makes them should be treated as the committer of voluntary fraud. The propriety of this is enforced by the consideration, that it is nearly impossible for creditors to provide against such fraudulence; and laws should be severe in proportion as the facilities of wrong are great.

  Such gradations might be multiplied indefinitely, until we arrived at those in which men contract debts without the probable prospect of payment; and thence up to the intentionally and voluntary fraudulent. For such offenders the penalties should be severe. The guilt of some of them is at least as great as that uf him who robs you of your purse or forges your signature. With respect indeed to those who pursue a deliberate course of fraud, and under pretence of business possess themselves of the property of others, and expend it or carry it off, there are few crimes connected with property that are equally atrocious. The law indeed appears to acknowledge this, for its penalty for a fraudulent bankrupt is desperately severe. Without stopping to inquire why it is so seldom inflicted, one truth appears to be plain, that a penal system which like ours scarcely adverts to crimes so extended and so great, must be greatly defective. Surely there are many persons who walk our streets every day, yet who are in the view both of natural and of Christian justice incomparably more guilty and more justly obnoxious to punishment than’ the majority of those whom the law confines in jails or transports beyond the ocean.

  We are persuaded, that if the penal law took cognizance of all insolvents, and regarded all who could not satisfactorily account for their insolvency as public delinquents—if these were prosecuted as systematically as thieves are now, and if by these means the idea of” crime” was associated with their conduct in the public mind, the deplorable mischiefs of bankruptcy would be quickly and greatly diminished. In the restraint of all crimes the power of public opinion is great. At present, unhappily, the man whose offence is justly worthy of imprisonment or transportation obtains his certificate, and then becomes the accepted associate of virtuous men, But teach the public to connect with him the idea not of a bankrupt but of a prisoner; not of a man who has acted dishonourably towards his creditors, but of a convicted criminal,—and this association would cease. Who would admit a footpad to his table? And who would admit to his table a man who was just like a footpad? It requires little knowledge of the constitution of society to know, that when the offences of fraudulent and negligent insolvency are ranked in the public estimation with those of ordinary criminals, men will be influenced by a new, and a powerful, and an efficient motive to avoid them.

  It is a question that involves some difficulties whether the publication of statements injurious to individuals, to a government, or to religion, are proper subjects of penal animadversion. That the publishers of these statements frequently act criminally is certain, and they are therefore justly obnoxious to punishment: but still it is to be inquired, whether they can be efficiently punished; and whether, if they be, the punishment can be such as to attain the proper ends of all punishment,—reformation, example, and redress.

  And here we are presented, at the outset, with a great impediment resulting from the nature of fixed law. If a libeller is to be legally punished, the law must give some definition of what a libel is. Now it is actually impossible to frame any definition which shall not either on the one hand give license to injurious publications by its laxity, or on the other prohibit a just publication of the truth by its rigour. The utmost sagacity of legislation cannot avoid one of these two consequences. They are not a Scylla and Charybdis which a wary helmsman may avoid; on the one or the other the legislator will infallibly find himself wrecked.

  If libellers, like other offenders, were tried by courts of equity, which were guided in their award by the simple merits of the case, without any regard to the definitions of law,—the case would be different. We might then expect that the publication of wholesome truths would receive no punishment though they constituted what is defined to be a libel now, and that the publication of gratuitous malignity would receive a punishment though lawyers now might say that the book was not a libel.

  Yet even if these difficulties resulting from the vain attempt.at legal definitions were surmounted, and equity alone were entrusted with the decision, it may still be greatly doubted whether, in the large majority of this class of publications, all attempts at direct punishment would not be better avoided.

  Refer to the objects of punishment. Assume for the present that reformation is the first. Is it probable, from the motives and nature of the offence, that the reformation of the offender can often be hoped from any species of judicial penalties?

  The second object we suppose to be example. Men may no doubt be deterred from publishing injurious statements by the fear of consequences; and thus far the end is attained. Supposing that the publishers could generally be discovered, and that the decisions of the courts were practically just, I should think the object of example would be a strong reason for inflicting judicial punishment upon the libeller:—still other considerations will presently be submitted, which induce the belief that such punishment is not the most effectual nor the most proper means of prevention.

  Then as to redress. There is only one way in which rational redress can be obtained by the aspersed party; and that is, by proving and making known the falsehood of the aspersion. But this can be done without applying to judicial courts.

  The reader will ask, What then is it proposed to do? and in furnishing a reply, I shall proceed upon the supposition that courts of law only exist.

  A statement injurious to a private individual is published to the world. He prosecutes the libeller under the most favourable circumstances. He can prove that it is legally a libel, and he can prove also that it is false. What then does he gain by proceeding to law? Nothing, individually, but that he proves the falsehood; and this he may do more satisfactorily, more cheaply, and more efficiently, without a court of law than within it. If there are documents, or if there is testimony by which he can prove the falsehood, they can be adduced before the public without the intervention of courts, and juries, and pleaders. Besides, the verdict of law upon such cases is habitually received with a sort of suspicion and want of confidence in its foundation; because we know that verdicts are continually given against the publishers of libels although the libel is true. Now, in whatever degree the public doubts respecting the absolute falsehood of the libel, in the same degree the great private object of prosecuting the libeller is frustrated. The same evidence of falsehood adduced to without the intervention of law, would be much more effectual, because it would be exempted from the same suspicion.—I put other motives to prosecution, such as a regard to the public, out of the question, because these are not often the motives which operate. In such matters men usually act not from public, but from private views.

  But the prosecutor’s circumstances may be less favourable. Suppose the statement, however injurious, is not legally a libel. Then, whatever evidence he produces, the verdict is against him, and the public, who do not trouble themselves with nice distinctions, perhaps think that the imputation upon his character is deserved. Again, it may be a libel, and yet he may fail of producing legal proof. The most mortifying and insignificant deficiencies in proof disappoint all his hopes. The publication of a libel which all the world has seen, and of which everybody knows the publisher, does not admit perhaps of legal proof. No man can be brought forward who has seen, with his own eyes, that a certain man did publish it. And here again the prosecutor obtains no redress. But further.—Many public statements are libellous and are cruelly injurious to the sufferer, which, nevertheless, are true. To prosecute these statements is worse than merely vain. You only extend further and wider the reproach which was confined in narrower limits before. You make the evil to yourself more intense as well as more extended; for the prosecuted party will no doubt take care to bring proof of the truth of his statements. Thus the scandal which was accepted with doubt and by a few previous to the trial, is accepted with certainty and by a multitude afterward.

  What then is to be done? Is every man to be at liberty to say with impunity whatever he pleases, true or false, against other men? Not with impunity; but with impunity from the law. That this legal impunity may be productive of some evils is undoubtedly true. But the question is not whether evils exist, but whether they can be remedied.—Let us suppose then that there was no such thing as libel law. I think it probable that if these laws were repealed to-morrow, the press would quickly inundate the public with torrents of vilification and slander. The malignity of bad men would for a while prevent them from perceiving the alteration which awaited the public habits. They would think that an aspersion would continue to have the same effect in practically injuring and blackening the character of others, as it has now that it is comparatively unfrequent from the restraints of law. But what would be the result? Inevitably this; that the public would very quickly regard libels as they regard all other common things, with heedless indifference. They would not seize upon them as they now do with a vicious avidity. Published slander would become to the public, what the abuse of fish-women is to the inhabitants of Billingsgate,—a thing which they do not regard,—a thing about which they do not trouble themselves to consider whether the mutual vilifications be true or false, and for which they scarcely think either the worse or the better of the quarrellers. With respect to published slander, such a state of things could not last. Private malignity would often die for want of food. It would not publish the aspersion which when published no one would regard, and the flood of vituperation would soon subside.

  But suppose for a moment that the contrary were possible. What would then happen? Why the public would habituate themselves to discrimination. They would not, they could not, accept every libel as true; and in general they would accept none as true of which the truth was not proved. Here again the desire of virtue would be in a great degree fulfilled; for we need not trouble ourselves to repress libels by which no man’s mind is influenced. In all suppositions too the proper means of redress are in the sufferer’s power,—to adduce proof of the falsehood and malignity of the assertion. And this is not only the greatest object to himself, but it would also be a positive punishment to the slanderer, while the custom would become a terror to other promulgators of slander. What punishment is so likely to be influential as to be proved to be a malicious and lying vilifier of innocent men? What motive so powerful to prevent this vilification, as the knowledge that this proof would be laid before the public?

  If an innocent person, whose character had been in this manner publicly aspersed, should ask what I would advise him to do, I should say—Think nothing of law: go to those persons who have the means of testifying the falsehood of the aspersion; procure their explicit and attested allegations; or if by any other means your innocence can be shown,—avail yourself of them, and forthwith lay your exculpation before the public. Here the great end is attained. Your character is not injured; and as to the slanderer he is punished by being made the subject of public reprobation and disgust. A few days previous to that on which I write, a wide-extended newspaper published some insinuations against the character of a gentleman eminent in society. What was done? Why, the same day or the next, a nobleman who happened to know the truth, and whose word no one would dispute, sent a note to another paper saying the insinuation was unfounded. Was not every object then attained? Would this gentleman have been further benefited by prosecuting the editor? or could this editor have been more appropriately punished than by this exposure of his malignity?

  But it will be said, that there do not exist the means of disproving some aspersions, however false. This is correct: but what is to be done? If the sufferer cannot disprove it in a newspaper or pamphlet, neither can he in a court of law; and unless it is disproved, a prosecution, besides procuring little or no redress, publishes the aspersion to a ten-fold number. Yet such a person may demand proof of the slanderer and require that he come forward. This, and such things, may be done in a manner that so indicates integrity and innocence, that in failure of a justification of the slander it would recoil upon the author.

  The most pitiable situation is that of a person, now perhaps virtuous and good, who is charged with some of the crimes or vices of which he was actually guilty in past times. Here the libel cannot be repelled for it is true. To invite investigation is to publish and deepen the slander. It must therefore be home: a painful alternative, but unavoidable; and he who endures it will, perhaps, if he be now a Christian, regard it with humility, as a not unjust retribution of his former sins.

  But to allow the unrestrained publication of facts or falsehood is not a matter purely evil. The statutes which prevent men from publishing libels, prevent them also from publishing truths,—truths which all men ought to hear. There are some actions which can in no other way be punished or discountenanced than by exposing them to the public reprobation. I saw the other day, in a newspaper (I think these popular references much to the purpose) a narrative of the gross cruelty of some gentleman to his horse, by which a large part of the animal’s tongue had been cut or torn from its mouth. The narrator said he was afraid to mention this man’s name on account of the libel laws. Suppose the statement to have been true, and the name to have been made public; would it not have been a proper and a severe punishment for the inhumanity? Would it not have deterred others from such inhumanity? In a word, ought not such charges to be published?—And thus it would be with a multitude of other offences for which scarcely any punishment is so effectual as the reprobation of the public. “There is no terror that comes home to the heart of vice, like the terror of being exhibited to the public eye.” I am willing to acknowledge, that if the, publication of many species of vicious conduct was more frequent,—so frequent as to be habitual, it would eventually tend to the extension of private and public virtue. Men who were in any way ill-disposed, would find themselves under a constant apprehension of exposure from which almost no vigilance could secure an escape. The writer from whom I have quoted the sentence above holds much stronger language than mine. “If truth,” says he, “were universally told of men’s dispositions and actions, gibbets and wheels might be dismissed from the face of the earth. The knave unmasked, would be obliged to tum honest in his own defence. Nay, no man would have time to grow a knave. Truth would follow him in his first irresolute essays, and public disapprobation arrest him in the commencement of his career.”⁵ All this is not now to.be hoped: yet when men knew that the exposure of their misdeeds was in the uncontrollable power of the press, and that there were no means of securing themselves from its punishment but being virtuous, would not they be more anxious to practise virtue? Would not the dread of exposure operate upon some of the unpunished vices of private life, as the dread of public opinion operates upon more public vices now? The restraining power of public opinion we know is great:—by dispensing with libel-laws we should extend that power.

  Finally, the repeal of these laws would be attended with one of two consequences. If the consequence was that these publications were not increased in number, no evil could be done. If they were increased and greatly increased in number, the public would soon learn to discriminate. Tales are believed now because they are seldom told, and the public discrimination is not sufficiently habituated to distinguish the false from the true. If it were, the true only would pass current. These often ought to pass; and as to the false,—who would publish what no one would believe it?⁶

  Publications to the discredit of government or its officers assume a different character; but the difference appears to be such as still more strongly to argue against visiting them with legal penalties. Charles James Fox remarked upon this difference. He thought however that private libels, some of the true as well as the false, might rightly be punished by the state; but “in questions relating to public men,” says he, “verity in respect of public measures ought to be regarded as a complete justification of a libel.”⁷ Whether truth be a justification of a political libel is one question,—Whether such a libel ought to be punished by the law is another. But I think that no statement respecting public measures ought to be punished by the law,—for this simple reason among others:—if the statement be true, it is commonly right that the truth should be publicly known; if it be false, the mischief is better remedied by publicly showing the falsehood than by any other means. Surely to repel the aspersion upon public men by showing that it is unfounded, is more consistent with the dignity of a government than to pursue the vituperater with fines and imprisonment. Surely this more dignified course would recommend the government and its measures to the judgments of all wise and judicious men.

  To what purpose will you prosecute a true statement. If a hundred men hear of it before the prosecution, ten thousand perhaps will hear of it afterward. Nor is this all: for I can scarcely know an act which can more powerfully tend to weaken a government, than first to act amiss, and then vindictively to pursue him who mentions the misconduct. If the object of a government in instituting such a prosecution be to strengthen its own hands, surely it pursues the object by most inexpedient means;—and as to suppressing truth by the mere influence of terror, it is a mode of governing for which no man in this country ought to lift his voice.

  A very serious point in addition is this,—that almost all political libels, whether true or false, are countenanced by a party. A prosecution therefore, however seemingly successful, is sometimes totally defeated, because the party recompenses the victim for his sufferings or his losses. The prosecution and those who conduct it become the laughing-stock of the party. In the days of Pitt, a person published a libel which that statesman declared in the House of Commons to be “the most infamous collection of sedition and treason that ever was published.”⁸ The man was prosecuted, found guilty, and sentenced to some imprisonment. What was the result? Why the party made a subscription for him to the amount, it was said, of four thousand pounds. What bad man would not publish a libel to be so paid? What discreet government would prosecute a libel to be so defeated?

  But if the uses of a free statement of the truth be so great in the case of private persons, much more it is desirable in the case of political affairs. To discuss, and if needful, temperately to animadvert upon the conduct of governments, is the proper business of the public. How else shall the judgment of a people be called forth and expressed? How else shall they induce an amendment in public measures? The very circumstance that government is above the customary control of the laws, is a good reason for allowing the people freely to deliver their sentiments upon its conduct. Many ill actions of the private man may be punished by the law; but how shall the ill actions of public persons be discountenanced if it be not by the expression of the public mind? A people have sometimes no other means of promoting reformations in the conduct of government, than by exposing those parts in which reformation is needed. The argument then is short.—To prosecute false political libels is unreasonable, for there are better and wiser means of procedure. To prosecute true statements is wrong, because truth ought to be freely told; and if it were not wrong, it would be absurd, because a government inflicts more injury upon itself by the prosecution than was inflicted by the statement itself.

  As the subject maligned rises in dignity, we are presented with stronger and still stronger dissuasions to the legal prosecution of the maligner. There are more reasons against prosecuting a political than a private aspersion: there are more reasons against prosecuting aspersions upon religion than either.—Supposing, which we must suppose, that religion is true, then all libels upon it must be false; and like other false libels are better met by proving the truth than by punishing the liar. “Christianity is but ill defended,” says Paley, “by refusing audience or toleration to the objections of unbelievers.”⁹ It is a scandal to religion to prosecute the man who makes objections to its truths: for what is the inference in the objector’s mind but this, that we resort to force because we cannot produce arguments? Nor let me be misinterpreted if I ask. What is Christianity, or who shall define it? I may be of opinion, and in fact I am of opinion, that some of the doctrines which the professors of Christianity promulgate, are as much opposed to Christianity as some of the arguments of unbelievers. But this is not a good reason for making my judgment the standard of truth. Yet, without a standard, how shall we prosecute him who impugns Christianity? How, rather, shall we know whether he impugns Christianity or something else?

  Truth is an overmatch for falsehood. Where they are allowed fairly to conflict, truth is sure of the victory. Who then would rob her of the victory by silencing falsehood by force? It is by such contests that the cause of truth is promoted. The assailant calls forth defenders; and it has in fact happened, that the proofs and practical authority of religion have been strengthened by defences which, but for the assaults of error, might never have been made or sought.

  If it be said that fair argument, however unsound. may be tolerated, and that you only mean to punish the authors of reproachful and scandalous attacks upon religion,—we answer, that these attacks, like every other, are better repelled by exposure or by neglect than by force. You can scarcely prosecute these bad men (so experience teaches) without making them cry out about persecution, and without calling around them a party who might otherwise have held their peace. They exclaim, “The sufferer believed what he wrote, and thought that to publish it was for the general good.” All this may be false, but it is specious. At any rate you cannot disprove it. Sympathy for the man induces sympathy for his principles.—Another way in which a prosecution defeats its proper object is, that to prosecute a writing, whether scandalous or only false, is a sure way of making the book read. Thousands inquire for a profligate book because they hear it is of so much importance as to be prosecuted, who else would not have inquired because they would not have heard of it. So it was about forty years ago with Paine’s works. What, says gaping curiosity, can this book be, which ministers and bishops are so anxious that we should not read? Multitudes have read the profligate later works of the unhappy Lord Byron, but probably unnumbered multitudes more would have read them if they had been prosecuted by the attorney-general and burnt by the hangman. As it is, it may be hoped they will sink into oblivion by the weight of their own obscene profaneness.¹⁰

  One objection applies to nearly all prosecutions of books,—that it is almost impossible to restrain the licentiousness of the press without diminishing its wholesome freedom. The boundaries of freedom and licentiousness cannot be defined by law. No law can be devised which ‘shall at once exclude the evil and permit the good. Now to restrain the freedom of the press is among the greatest mischiefs which can be inflicted upon mankind. The reader will be prepared to acknowledge the magnitude of the mischief, if he considers how powerful and how proper an agent public opinion is in promoting social and political reformations. There is no agent of reformation so desirable as the quiet influence of the public judgment; and in order to make this judgment sound and powerful, the press should be free.

  The general conclusion that is suggested.by the present chapter is, what the intelligent and Christian reader might expect,—that the legislator should endeavour, so far as from time to time becomes practicable, to direct penal animadversion to those actions which are prohibited by the moral law; that he should endeavour this, both by addition and deduction; by ceasing to punish that which morality does not condemn, and by extending punishment to more of those actions which it does condemn.

  As to the seeming exception in the case of libels, we do not contend so much for their impunity, as that the law is not the best means of punishment. By taking the care of restraining this offence from the law and placing it in the hands of the public, the punishment would sometimes be not only more effectual but more severe

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^{1 Paley: Mor. and Pol. Phil. b.3, p.3.—Seduction.
2 I have somewhere met with a book which contended that to commit these created offences was no breach of morality. This, however, is not true, because the obligation to obey civil government, in its innocent enactments, is clearly stated in the moral law.
3 Theory of Moral Sentiment.
4 In France, it is said, and in America, duelling is descending to the inferior classes of society. If this should become general, we may soon reckon upon an efficient diminution of the practice. The rich will forbear it on account of its vulgarity, and they will take care to punish it when it is practised only by the poor.
5 Godwin: Inq. Pol. Just. v.ii. p.643.
6 I learn from a book which professes to give information respecting “Society and manners in High and Low Life,” that there existed (and perhaps there still exists) a house of call in London, where he who had malice without ability might bespeak a libel upon any subject. The price was seven-and-sixpence. In a few hours be might hear the scandal, if such was his order, sung about the streets.—Such a fact may well affect our resolution to punish libellers by the grave power of the law.
7 Fell’s Memoirs.
8 Gifford’s Life.
9 Mor. and Pol. Phil b.a, c.9.
10 This man, affords an instance of that strange detraction from our own reputation with posterity to which we have before referred. He certainly wished that “dull oblivion” should not}

^{How preposterous then to be the suicide of so large a portion of his hopes, by writing what experience might teach him the nations would not honour!}

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