A popular essay on subjects of penal law, and on uninterrupted solitary confinement at labor, as contradistinguished to solitary confinement at night and joint labor by day, in a letter to John Bacon / by Francis Lieber.

  • Lieber, Francis, 1800-1872.
Date:
1838
Catalogue details

Licence: Public Domain Mark

Credit: A popular essay on subjects of penal law, and on uninterrupted solitary confinement at labor, as contradistinguished to solitary confinement at night and joint labor by day, in a letter to John Bacon / by Francis Lieber. Source: Wellcome Collection.

Provider: This material has been provided by the National Library of Medicine (U.S.), through the Medical Heritage Library. The original may be consulted at the National Library of Medicine (U.S.)

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    the offence: crime, the contradiction to the rightful order of things which reason demands to see realized in the state, must be extinguished, annulled, blotted out, and the means of effect- ing this is the punishment, which thus, as I have said, becomes essentially retribution—political visitation as it were. Justice is considered in this case as something absolute, existing for itself, or an organic thing which, being counteracted by some- thing, counteracts in turn, to re-establish itself in pristine or rather absolute purity as first founded and conceived in reason. To use a comparison, punishment is the process by which the curative power of nature ejects the poison of disease, or, if another simile be preferred, punishment is the negative quan- tity requisite to defeat and reduce to zero the quantity crime. But how does punishment obliterate the offence? I cannot see it. Does it do so in the abstract, ideally? The offence is ever a distinct and concrete one, a fact alone for the state. The theory rests upon the confusion of sin and crime or state offence. Sin is wrong inasmuch as it counteracts and disturbs the moral order of things. It belongs to the conscience and its God to judge of it; the state cannot have cognisance of anything but the fact, and how can a fact be obliterated? A thorough refu- tation of this theory which, nevertheless, as most of the others, leads to a partially correct view, if carefully treated would require a different range of argumentation from those allowed in the present lines. May it suffice here to observe that it does not, in spite of its positiveness, dispense with the question why? and wherefore? For in all matters of right, law, and politics, I can acknowledge but one axiom, namely: I am a man, therefore I have a right to be a man. All the rest must be shown how, why, on what ground, for what purpose? It is right if the penal code of Charles V.* uses the expression: for the love of justice shall a man be punished; but if we omit to show why, justice becomes a sort of Moloch, which demands with absoluteness his sacrifices. It has ever appeared to me that, granting this absolute foundation of civil punition, * Article 104.