THREE:Lastly, some have thought that the gravity of an acts 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[201] 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.CHAPTER XVI. CAPITAL PUNISHMENT.
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TWO:Repression by the law seems likewise the only means of preventing that large class of actions which affect the general character and tone of a country, whilst they injuriously affect no individual in particular. The protection of creatures too feeble to protect themselves justifies, under this head, the legal punishment of cruelty to animals. It is idle to say that the law can do nothing against the average moral sense of the community, for the law is often at first the only possible lever of our moral ideas. Were it not for the law we should still bait bulls and bears, and find amusement in cock-throwing; and till the law includes hares and pigeons within the pale of protection drawn so tenderly round bulls and bears, no moral sense is likely to arise against the morbid pleasures of coursing and pigeon-shooting.Yet, supposing it were proved to-morrow that punishment fails entirely of the ends imputed to it; that, for example, the greater number of crimes are[80] committed by criminals who have been punished already; that for one chance of a mans reformation during his punishment there are a hundred in favour of his deterioration; and that the deterrent influence of his punishment is altogether removed by his own descriptions of it; shall we suppose for a moment that society would cease to punish, on the ground that punishment attained none of its professed ends? Would it say to the horse-stealer, Keep your horse, for nothing we can do to you can make you any better, nor deter others from trying to get horses in the same way?
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TWO:Moreover, if, as was said, our feelings are limited in quantity, the greater respect men may have for things outside the laws, the less will remain to them for the laws themselves. From this principle the wise administrator of the public happiness may draw some useful consequences, the exposition of which would lead me too far from my subject, which is to demonstrate the uselessness of making a prison of the State. A law with such an object is useless, because, unless inaccessible rocks or an unnavigable sea separate a country from all others, how will it be possible to close all the points of its circumference and keep guard over the guardians themselves? A man who transports everything he has with him, when he has done so cannot be punished. Such a crime once committed can no longer be punished, and to punish it beforehand would be to punish mens wills, not their actions, to exercise command over their intention, the freest part of human nature, and altogether independent of the control of human laws. The punishment of an absent man in the property he leaves behind him would ruin all international commerce,[225] to say nothing of the facility of collusion, which would be unavoidable, except by a tyrannical control of contracts. And his punishment on his return, as a criminal, would prevent the reparation of the evil done to society, by making all removals perpetual. The very prohibition to leave a country augments peoples desire to do so, and is a warning to foreigners not to enter it.
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