IT has appeared, that the most essential of those rights which constitute the peculiar sphere appropriate to each individual, and the right upon which every other depends as its basis, is the right of private judgement. It will therefore be of use to say something distinctly on this head.
To a rational being there can be but one rule of conduct, justice; and one mode of ascertaining that rule, the exercise of his understanding.
If in any instance I am made the mechanical instrument of absolute violence, in that instance I fall under a pure state of external slavery. If on the other hand, not being under the influence of absolute compulsion, I am wholly prompted by something that is frequently called by that name, and act from the hope of reward or the fear of punishment, the subjection I suffer is doubtless less aggravated, but the effect upon my moral habits may be in a still higher degree injurious.
In the meantime, with respect to the conduct I should observe upon such occasions, a distinction is to be made. Justice, as it was defined in a preceding chapter, is coincident with utility. I am myself a part of the great whole, and my happiness is a part of that complex view of things by which justice is regulated. The hope of reward therefore, and the fear of punishment, however wrong in themselves, and inimical to the improvement of the mind, are motives which, so long as they are resorted to in society, must and ought to have some influence with my mind.
There are two descriptions of tendency that may belong to any action, the tendency which it possesses by the necessary and unalterable laws of existence, and the tendency which results from the arbitrary interference of some intelligent being. The nature of happiness and misery, pleasure and pain, is independent of positive institution. It is immutably true, that whatever tends to procure a balance of the former is to be desired, and whatever tends to procure a balance of the latter is to be rejected. In like manner there are certain features and principles inseparable from such a being as man; there are causes which, in their operation upon him, are in their own nature generative of pleasure, and some of a pleasure more excellent than others. Every action has a result which may be said to be peculiarly its own, and which will always follow upon it, unless so far as it may happen to be superseded by the operation of other and extrinsical causes.
The tendency of positive institution is of two sorts, to furnish an additional motive to the practice of virtue or right; and to inform the understanding, as to what actions are right and what actions are wrong. Much cannot be said in commendation of either of these tendencies.
First, positive institution may furnish an additional motive to the practice of virtue. I have an opportunity of essentially contributing to the advantage of twenty individuals; they will be benefited, and no other persons will sustain a material injury. I ought to embrace this opportunity. Here let us suppose positive institution to interfere, and to annex some great personal reward to the discharge of my duty. This immediately changes the nature of the action. Before, I preferred it for its intrinsic excellence. Now, so far as the positive institution operates, I prefer it because some person has arbitrarily annexed to it a great weight of self-interest. But virtue, considered as the quality of an intelligent being, depends upon the disposition with which the action is accompanied. Under a positive institution then, this very action, which is intrinsically virtuous, may, so far as relates to the agent, become vicious. The vicious man would before have neglected the advantage of these twenty individuals, because he would not bring a certain inconvenience or trouble upon himself. The same man, with the same disposition, will now promote their advantage, because his own welfare is concerned in it. Twenty, other things equal, is twenty times better than one. He that is not governed by the moral arithmetic of the case, or who acts from a disposition directly at war with that arithmetic, is unjust.1 In other words, moral improvement will be forwarded, in proportion as we are exposed to no other influence, than that of the tendency which belongs to an action by the necessary and unalterable laws of existence. This is probably the meaning of the otherwise vague and obscure principle, "that we should do good, regardless of the consequences", and by that other, "that we may not do evil, from the prospect of good to result from it". The case would have been tendered still more glaring, if, instead of the welfare of twenty, we had supposed the welfare of millions to have been concerned. In reality, whether the disparity be great or small, the inference must be the same.
Secondly, positive institution may inform the understanding, as to what actions are right, and what actions are wrong. Here it may be of advantage to us to reflect upon the terms understanding and information. Understanding, particularly as it is concerned with moral subjects, is the percipient of truth. This is its proper sphere. Information, so far as it is genuine, is a portion detached from the great body of truth. You inform me "that Euclid asserts the three angles of a plane triangle to be equal to two right angles". Still I am unacquainted with the truth of this proposition. "But Euclid has, demonstrated it. His demonstration has existed for two thousand years, and, during that term, has proved satisfactory to every man by whom it has been understood." I am nevertheless uninformed. The knowledge of truth lies in the perceived agreement or disagreement of the terms of a proposition. So long as I am unacquainted with the middle term by means of which they may be compared, so long as they are incommensurate to my understanding, you may have furnished me with a principle from which I may reason truly to further consequences; but, as to the principle itself, I may strictly be said to know nothing.
Every proposition has an intrinsic evidence of its own. Every consequence has premises from which it flows; and upon them, and not upon anything else, its validity depends. If you could work a miracle to prove "that the three angles of a triangle were equal to two right angles", I should still know that the proposition had been either true or false previously to the exhibition of the miracle; and that there was no necessary connection between any one of its terms and the miracle exhibited. The miracle would take off my attention from the true question to a question altogether different, that of authority. By the authority adduced I might be prevailed on to yield an irregular assent to the proposition; but I could not properly be said to perceive its truth.
But this is not all. If it were, it might perhaps be regarded as a refinement foreign to the concerns of human life. Positive institutions do not content themselves with requiring my assent to certain propositions, in consideration of the testimony by which they are enforced. This would amount to no more than advice flowing from a respectable quarter, which, after all, I might reject if it did not accord with the mature judgement of my own understanding. But in the very nature of these institutions there is included a sanction, a motive either of punishment or reward, to induce me to obedience.
It is commonly said "that positive institutions ought to leave me free in matters of conscience, but may properly interfere with my conduct in civil concerns." But this distinction seems to have been very lightly taken up. What sort of moralist must he be, whose conscience is silent as to what passes in his intercourse with other men? Such a distinction proceeds upon the supposition "that it is of great consequence whether I bow to the east or the west; whether I call the object of my worship Jehovah or Allah; whether I pay a priest in a surplice or a black coat. These are points in which an honest man ought to be rigid and inflexible. But as to those other, whether he shall be a tyrant, a slave or a free citizen; whether he shall bind himself with multiplied oaths impossible to be performed, or be a rigid observer of truth; whether he shall swear allegiance to a king de jure, or a king de facto, to the best or the worst of all possible governments: respecting these points he may safely commit his conscience to the keeping of the civil magistrate." In reality, by as many instances as I act contrary to the unbiased dictate of my own judgement, by so much I abdicate the most valuable part of the character of man.
I am satisfied at present that a certain conduct, suppose it be a rigid attention to the confidence of private conversation, is incumbent on me. You tell me "there are certain cases of such peculiar emergency as to supersede this rule." Perhaps I think there are not. If I admit your proposition, a wide field of enquiry is opened respecting what cases do or do not deserve to be considered as exceptions. It is little likely that we should agree respecting all these cases. How then does the law treat me for my conscientious discharge of what I conceive to be my duty? Because I will not turn informer (which, it may be, I think an infamous character) against my most valued friend, the law accuses me of misprision of treason, felony or murder, and perhaps hangs me. I believe a certain individual to be a confirmed villain and a most dangerous member of society, and feel it to be my duty to warn others, perhaps the public, against the effect of his vices. Because I publish what I know to be true, the law convicts me of libel, scandalum magnatum, and crimes of I know not what complicated denomination.
If the evil stopped here, it would be well. If I only suffered a certain calamity, suppose death, I could endure it. Death has hitherto been the common lot of men, and I expect, at some time or other, to submit to it. Human society must, sooner or later, be deprived of its individual members, whether they be valuable, or whether they be inconsiderable. But the punishment acts, not only retrospectively upon me, but prospectively upon my contemporaries and countrymen. My neighbour entertains the same opinion respecting the conduct he ought to hold, as I did. The executioner of public justice however interposes with a powerful argument, to convince him that he has mistaken the path of abstract rectitude.
What sort of converts will be produced by this unfeeling logic? "I have deeply reflected," suppose, "upon the nature of virtue, and am convinced that a certain proceeding is incumbent on me. But the hangman, supported by an act of parliament, assures me I am mistaken." If I yield my opinion to his dictum, my action becomes modified, and my character also. An influence like this is inconsistent with all generous magnanimity of spirit, all ardent impartiality in the discovery of truth, and all inflexible perseverance in its assertion. Countries, exposed to the perpetual interference of decrees, instead of arguments, exhibit within their boundaries the mere phantoms of men. We can never judge from an observation of their inhabitants what men would be if they knew of no appeal from the tribunal of conscience, and if, whatever they thought, they dared to speak, and dared to act.
At present there will perhaps occur to the majority of readers, but few instances of laws which may be supposed to interfere with the conscientious discharge of duty. A considerable number will occur in the course of the present enquiry. More would readily offer themselves to a patient research. Men are so successfully reduced to a common standard by the operation of positive law, that, in most countries, they are capable of little more than, like parrots, repeating what others have said. This uniformity is capable of being produced in two ways, by energy of mind and indefatigableness of enquiry, enabling a considerable number to penetrate with equal success into the recesses of truth; and by pusillanimity of temper, and a frigid indifference to right and wrong, produced by the penalties which are suspended over such as shall disinterestedly enquire, and communicate and act upon the result of their enquiries. It is easy to perceive which of these is the cause of the uniformity that prevails in the present instance.
One thing more in enforcement of this important consideration. "I have done something," suppose, "which, though wrong in itself, I believe to be right; or I have done something which I usually admit to be wrong; but my conviction upon the subject is not so clear and forcible as to prevent my yielding to a powerful temptation." There can be no doubt that the proper way of conveying to my understanding a truth of which I am ignorant, or of impressing upon me a firmer persuasion of a truth with which I am acquainted, is by an appeal to my reason. Even an angry expostulation with me upon my conduct will but excite similar passions in me, and cloud, instead of illuminate, my understanding. There is certainly a way of expressing truth with such benevolence as to command attention, and such evidence as to enforce conviction in all cases whatever.
Punishment inevitably excites in the sufferer, and ought to excite, a sense of injustice. Let its purpose be, to convince me of the truth of a position which I at present believe to be false. It is not, abstractedly considered, of the nature of an argument, and therefore it cannot begin with producing conviction. Punishment is a comparatively specious name; but is in reality nothing more than force put upon one being by another who happens to be stronger. But strength apparently does not constitute justice. The case of punishment, in the view in which we now consider it, is the case of you and me differing in opinion, and your telling me that you must be right, since you have a more brawny arm, or have applied your mind more to the acquiring skill in your weapons than I have.
But let us suppose "that I am convinced of my error, but that my conviction is superficial and fluctuating, and the object you propose is to render it durable and profound." Ought it to be thus durable and profound? There are no doubt arguments and reasons calculated to render it so. Is the subject in reality problematical, and do you wish by the weight of your blows to make up for the deficiency of your logic? This can never be defended. An appeal to force must appear to both parties, in proportion to the soundness of their understanding, to be a confession of imbecility. He that has recourse to it would have no occasion for this expedient if he were sufficiently acquainted with the powers of that truth it is his office to communicate. If there be any man who, in suffering punishment, is not conscious of injury, he must have had his mind previously debased by slavery, and his sense of moral right and wrong blunted by a series of oppressions.
If there be any truth more unquestionable than the rest, it is that every man is bound to the exertion of his faculties in the discovery of right, and to the carrying into effect all the right with which he is acquainted. It may be granted that an infallible standard, if it could be discovered, would be considerably beneficial. But this infallible standard itself would be of little use in human affairs, unless it had the property of reasoning as well as deciding, of enlightening the mind as well as constraining the body. If a man be in some cases obliged to prefer his own judgement, he is in all cases obliged to consult that judgement, before he can determine whether the matter in question be of the sort provided for or no. So that from this reasoning it ultimately appears that the conviction of a man's individual understanding is the only legitimate principle imposing on him the duty of adopting any species of conduct.
Such are the genuine principles of human society. Such would be the unconstrained condition of its members in a state where every individual within the society and every neighbour without was capable of listening with sobriety to the dictates of reason. We shall not fail to be impressed with considerable regret if, when we descend to the present mixed characters of mankind, we find ourselves obliged in any degree to depart from so simple and grand a principle. The universal exercise of private judgement is a doctrine so unspeakably beautiful that the true politician will certainly feel infinite reluctance in admitting the idea of interfering with it. A principal object in the subsequent stages of enquiry will be to discuss the emergency of the cases that may be thought to demand this interference.
Book IV, Chap.X.