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justifies the magistrate in inflicting it at all, is the prevention of greater evil. If it could be proved, after the commission of a murder, that the acquittal of the murderer would not induce any other person to perpetrate a similar crime in the hope of escaping with impunity, on that supposition the magistrate would not be justified in inflicting any punishment. But since experience shows, that the most dangerous consequences would result to society, if murderers were not punished with death, the magistrate is permitted to “ do evil that good may come,” that is to say, he is authorized to take away the life of one man to save the lives of thousands. Since, then, laws are made to secure and extend happiness, and not to produce pain, it follows, that in the apportionment of punishment to crime, no greater degree of suffering should be inflicted on the offender than is necessary to prevent a repetition of the crime.
than vice; reconcile interest with duty; show that honesty is the best policy, and you secure a moral and religious population. Crimes will be diminished, because it will be seen that there is more profitableness in obeying, than in violating the law. It is not a little surprising that the Edinburgh Review, with an inconsistency perfectly unaccountable, has declared that but little expectation can be entertained of the improvement of the lower order. We cannot pursue this subject, but we earnestly entreat all those who pin their faith on the sleeve of Mr. Jeffrey, to pause before they assent to his disheartening doctrine. At any rate the chance is sufficiently attractive to warrant an experiment.;
· Inasmuch as the punishment exceeds either in duration or intensity, the quantum that is sufficient to answer the end of example, it becomes vindictive, and therefore unjustifiable. Let it then be assumed, that there are only two modes of inflicting punishment, viz. corporeal or pecuniary; and that the prevention of crime is the sole end of punishment. Reasoning on these data, we shall endeavour to show, that the legislature of this country have no right to interfere in matters of religious opinion.
The powers of Government are delegated, and held in trust for the people, on the implied condition, that nothing will be done which militates against general utility. Therefore, if the Government enacts laws, which are pro- . ductive of misery, and cannot in any way prove beneficial, the condition on which their powers were delegated, is broken, and consequently they revert back to the donors—the people. This principle, borrowed from the old feudal law of tenures, is the most import
ant feature in constitutional law ; it has been clearly explained by Locke, in his Dissertation on Government, and is sanctioned and established by the Revolution of 1688.
In the last chapter, abundant evidence was adduced to prove, that in no one instance had the infliction of punishment produced uniformity of opinion : but, on the contrary, that all prosecutions, whether by fines or bodily suffering, had invariably rendered the seceders more obstinate in their dissent. It has also been shown, that the prevention of crime is the sole justifiable end of punishment. But experience has demonstrated, that differences of religious opinion cannot be prevented: therefore, the legislature have no right to interfere. For the evil produced by punishment, becomes in this instance, a pure and unmixed evil : it does not prevent a greater evil: the suffering it occasions to any individual, is vindictive, because it will never alter his opinion, but rather confirm it: neither is it exemplary, because it never has deterred, and never will deter, others from a repetition of the offence.
It is hoped, that enough has been said to prove the political unjustifiableness of penal laws, the object of which is to controul the right of
private judgment in matters of religious opinion. They are unjustifiable, because they are inoperative; and it may not be improper to explain the reason why they are inoperative. “ The law,” says Paley, “ never speaks, but to command, and commands but where it can compel.” Now, since belief is an involuntary operation of the mind, it is evidently beyond the reach of law, because no law can alter the nature of man. For how is it possible to controul the thoughts of beings, who, by the peculiar organization of the thinking principle, whatever that may be, are quite unable, by any exercise of volition, to increase or diminish the quantity or quality of their belief? It is said of Procrostes, that after having seized a captive, he placed him on his own bed, and either stretched the limbs, or amputated the extremities of his victims, till their stature corresponded with the admeasurement of his bed. This barbarous custom is a forcible illustration of modern orthodoxy, the absurdity and cruelty of each being precisely similar. For a man is no more responsible to any earthly tribunal for his religious opinions, than he is for the height and weight of his body, or the colour of his skin.
There remains only one more remark, which
indeed scarcely deserves notice; but we are unwilling to leave any objection, however frivolous, unanswered. It has been urged by the enemies of toleration, that though belief is an involuntary operation of the mind, yet that the expression of that belief is voluntary, and that a man is no more authorized to disseminate erroneous opinions, than an individual affected with a contagious disease is justified in appearing in public. This comparison, though it has been frequently used, is founded in a fallacy, arising from the substitution of a metaphor for an argument. Among the sophists, this mode of gaining the victory at the sacrifice of truth, is too common. The fallacy consists in assuming, that the prohibited opinions are erroneous, which is what logicians call a petitio principii, or in plain parlance, a begging of the question. If they were admitted to be erroneous, then they might be 'assimilated to a disease, and the comparison would hold good. But this is the very point at issue. Bodily diseases manifest themselves by external signs, and these signs are uniform in their appearance, and perfectly well known to physicians. If a vessel were to arrive in any lazzaretto in Europe, infected with the plague, and a dozen physicians, each of a different sect, were appointed to examine the crew, they would all come to the same