When the authorities were regarded as vultures preying on the weaker members of the community, the aim of patriots was to set limits to the power which the ruler should be suffered to exercise over the ommunity, and this limitation was what they meant by liberty. It was attempted in two ways: a. By obtaining a recognition of certain immunities, called political liberties or rights, which it was to be regarded as a breach of duty in the ruler to infringe, and which if he did infringe, specific resistance, or general rebellion, was held to be justifiable. . The establishment of constitutional checks, by which the consent of the community, or of a body of some sort, supposed to represent its interests, was made a necessary condition to some of the more important acts of the governing power. II. When men ceased to think it a necessity of nature that their governors should be an independent power, opposed in interest to themselves. It appeared to them much better that the various magistrates of the State should be their tenants or delegates, revocable at their pleasure. a.
Since the rulers are now identified with the people, their interest and will the interest and will of the nation, the nation did not need to be protected against its own will. There was no fear of its tyrannising over itself. But success discloses faults and infirmities which failure might have concealed from observation. The people” who exercise the power are not always the same people with those over whom it is exercised; and the “self-government” spoken of is not the government of each by himself, but of each by all the rest.
The will of the people, moreover, practically means the will of the most numerous of the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority”the tyranny of the majority. b. Tyranny of the majority: when society is itself the tyrant” society collectively over the separate individuals who compose it ”its means of tyrannising are not restricted to the acts which t may do by the hands of its political functionaries.
It practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Therefore, there needs protection against the tyranny of the prevailing opinion and feeling. c. How to make the fitting adjustment between individual independence and social control?
People set different rules of conduct in every and each different age and country. Yet the rules which obtain among hemselves appear to them self-evident and self-justifying. ”Custom is not only a second nature, but is continually mistaken for the first. 1) The practical principle which guides them to their opinions on the regulation of human conduct, is the feeling in each person’s mind that everybody should be required to act as he, and those with whom he sympathises, would like them to act.
No one acknowledges that his standard of judgement is his own liking; but an opinion on a point of conduct, not supported by reasons, can only count as one person’s preference; and if the reasons, when given, are a mere appeal to the imilar preference felt by other people, it is still only many people’s liking instead of one. Most commonly, their opinions depended on their desires or fears for themselves”their legitimate or illegitimate self-interest. Wherever there is an ascendant class, a large portion of the morality of the country emanates from its class interests, and its feelings of class superiority. ) Another grand determining principle of the rules of conduct has been the servility of mankind towards the supposed preferences or aversions of their temporal masters or of their gods This servility, though essentially selfish, is not hypocrisy; it gives rise to perfectly genuine sentiments of abhorrence; it made men burn magicians and heretics. 3) Interests of society also had a great share in the direction of the moral sentiments, as a consequence of the sympathies and antipathies which grew out of them.
The likings and dislikings of society, or of some powerful portion of it, are thus the main thing which has practically determined the rules laid down for general observance , under the penalties of law or opinion. Yet so natural to mankind is intolerance in whatever they really care about, that religious reedom has hardly anywhere been practically realised, except where religious indifference has added its weight to the scale. Wherever the sentiment of the majority is still genuine and intense, it is found to have abated little of its claim to be obeyed. . The sole end for which mankind are warranted in interfering with the liberty of action of any of their member, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. l. His own good, either physical or moral, is not a sufficient warrant . In the part which merely concerns himself, his independence is, of right, absolute. We own ourselves. II. This doctrine is meant to apply only to human beings in the maturity of their faculties.
For the same reason, liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Ill. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of a man as a progressive being. IV. He may rightfully e compelled to perform for the benefit of others, for a person may cause evil to others not only by his action but by his inaction, and in either case he is justly accountable to them for the injury.
V. In cases where a person’s conduct affects only himself, or if it also affects others, only with their free, voluntary, and undeceived consent and participation, society has only an indirect interest. 4. The appropriate region of human liberty comprises I. The inward domain of consciousness: demanding liberty of conscience in the most comprehensive sense; liberty of thought and feeling; absolute freedom of pinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to be inseparable from it.
II. The principle requires liberty of tastes and pursuits: of framing the plan of our life to suit our own character: of doing as we like, subject to such consequences as may follow; without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. Ill. The liberty of combination among individuals: freedom to unite, for any purpose not involving harm to thers; the persons combing being supposed to be of full age, and not forced or deceived. 5.
The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. 6. There is in the world at large an increasing inclination to stretch unduly the powers of society over the individual, both by the force of opinion and even by that of legislation; and as the tendency of all the changes taking place in the world is to strengthen society, and diminish the power of the individual, this encroachment is not one of the evils which tend o disappear.
Chapter 2 Of the Liberty of Thought and Discussion 1. No argument can now be needed against permitting a legislature, not identified in interest with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear. Let us suppose then that the government is entirely at one with the people, and never thinks of exerting any power of coercion unless in agreement with what it conceives to be their voice. But I deny the right of the people to exercise such coercion, either by themselves or by their government.
The power itself is illegitimate. 2. Ifthe opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose the clearer perception and livelier impression of truth, produced by its collision with error : l. The opinion which it is attempted to suppress by authority may possibly be true. a. They have no authority to decide the question for all mankind, and exclude every other person from the means of judging. All silencing of discussion is an assumption of INFALLIBILITY . b.
We’ve never taken our fallibility seriously, though we’d admit it in theory. And even when we do, we just turn to repose on the infallibility of “the orld” in general ; and it never troubles us that mere accident has decided which of these numerous worlds is the object of our reliance, or that ages are no more infallible than individuals. c. The objections: 1) There is no greater assumption of infallibility in forbidding the propagation of error, than in any other thing which is done by public authority on its own judgement and responsibility.
If we were never to act on our opinions because those opinions may be wrong, we should leave all our interests uncared for, and all our duties unperformed. Thus, we may, and must, assume our opinion to be rue for the guidance of our own conduct. A: Complete liberty of contradicting and disapproving our opinion is the very condition which justifies us in assuming its truth for purposes of action. Human beings are capable of rectifying our mistakes by discussion and experience .
Any person whose judgement is deserving of confidence has kept his mind open to criticism of his opinions and conduct, because he feels that the only way in which a human being can understand the whole of a subject, is by hearing what can be said about it by persons of every variety of opinion, and studying all modes in which it can be ooked at by every character of mind. 2) Men should admit the validity of the arguments for free discussion, but object to their being “pushed to an extreme. ” Some particular principle or doctrine should be forbidden to be questioned because it is so certain.
A: Unless the reasons are good for an extreme case, they are not good for any case. To call any proposition certain, while there is anyone who would deny its certainty, if permitted, is to assume that we ourselves are the judges of certainty, and judges without hearing the other side. 3) In the age of “destitute of faith, but terrified at scepticism” , people should not now what to do without their “true opinions”. This mode of thinking makes the justification of restraints on discussion a question of usefulness; and escapes the responsibility of claiming to be infallible judge of opinions.
A: The assumption of infallibility is merely shifted from one point to another. The usefulness of an opinion is itself matter of opinion. The truth of an opinion is part of its utility, and no belief which is contrary to truth can be really useful. There can be no fair discussion of the question of usefulness when an argument so vital may be employed on one side, but not on the other. ) A concrete case (EXAMPLE): the belief in a God and in a future state, or any of the commonly received doctrines of morality.
A: It is not the feeling sure of a doctrine which I call an assumption of infallibility. It is the undertaking to decide that question for others, without allowing them to hear what can be said on the contrary side. And so far from the assumption being less objectionable or less dangerous because the opinion is called immoral or impious, these are exactly the occasions on which the men of one generation commit those dreadful mistakes which excite the astonishment and horror of posterity. i. Socrates: “Corruptor of youth” ii. Jesus Christ: “Blasphemer” iii.
Marcus Aurelius: persecuted Christianity 5) The persecutors of Christianity were in the right; persecution is an ordeal through which truth ought to pass, and always passes successfully, legal penalties being, in the end, powerless against truth, though sometimes beneficially effective against mischievous errors. A: We cannot commend the generosity of its dealing with the persons to whom mankind are indebted. History teems with instances of truth put down by persecution. If not suppressed for ever, it may be thrown back for centuries.
Persecution has always ucceeded, save where the heretics were too strong a party to be effectually persecuted. The real advantage which truth has consists in that when an opinion is true, it may be extinguished once, twice, or many times, but in the course of ages there will generally be found persons to rediscover it, until some one of its reappearances falls on a time when from favourable circumstances it escapes persecution until it has made such head as to withstand all subsequent attempts to suppress it. ) No person can be allowed to give evidence in a court of justice who does not profess belief in a God (any god is sufficient) and in a future state . A: Under pretence that atheists must be liars, it admits the testimony of all atheists who are willing to lie, and rejects only those who brave the obloquy of publicly confessing a detested creed rather than affirm a falsehood. 7) We do not now put to death the introducers of new opinions.
A: Our merely social intolerance kills no one, roots out no opinions, but induces men to disguise them, or to abstain from any active effort for their diffusion, because in respect to all persons but those whose pecuniary circumstances make them independent of the good will of other people, opinion, on this subject, is as efficacious as law; en might as well be imprisoned, as excluded from the means of earning their bread. d. The price paid for this sort of intellectual pacification is the sacrifice of the entire moral courage of the human mind . ) No one can be a great thinker who does not recognise, that as a thinker it is his first duty to follow his intellect to whatever conclusions it may lead. Truth gains more by the errors of one who, with due study and preparation, thinks for himself, than by the true opinions of those who only hold them because they do not suffer themselves to think. 2) Not only that, it is as much and even more indispensable to enable average uman beings to attain the mental stature which they are capable of. There never has been, nor ever will be, in a general atmosphere of mental slavery, an intellectually active people.
II. If all the received opinions are true. a. To shut out discussion entirely is seldom possible, and when it once gets in, beliefs not grounded on conviction are apt to give way before the slightest semblance of an argument. The true opinion abides in the mind, but abides as a prejudice”this is not the way in which truth ought to be held by a rational being. Truth, thus held, is but one superstition the more, accidentally clinging o the words which enunciate a truth. b. The cultivation of the understanding of mankind consists in learning the grounds of one’s own opinions. ) Objection: Let them be taught the grounds of their opinions. Answer: Such teaching suffices on a subject like mathematics, where there is nothing at all to be said on the wrong side of the question, but on every subject on which difference of opinion is possible, the truth depends on a balance to be struck between two sets of conflicting reasons. It has to be shown why that other theory cannot be the true one: and until this is shown, and until we know how it is shown, e do not understand the grounds of our opinion.
Example: Cicero always studied his adversary’s case with as great intensity as his own. 2) Objection: It is enough if there is always somebody capable of answering them , so that nothing likely to mislead uninstructed persons remains unrefuted. Answer: However, this cannot be accomplished unless they are freely stated, and placed in the most advantageous light which they admit of. Example: Church makes a broad separation between those who can be permitted to receive its doctrines on conviction and those who must accept them on trust. . The fact is that not nly the grounds of the opinion are forgotten in the absence of discussion, but too often the meaning of the opinion itself . Almost all ethical doctrines and religious creeds are full of meaning and vitality to those who originate them. Their meaning continues to be felt in undiminished strength, and is perhaps brought out into even fuller consciousness, so long as the struggle lasts. At last it either prevails and becomes the general opinion, or its progress stops.
They subsided into acquiescence, and from this time they may usually be dated the decline in the living power of the doctrine. The fatal tendency of mankind to eave off thinking about a thing when it is no longer doubtful, is the cause of half their errors, which is well described as “the deep slumber of a decided opinion. ” Example: It is scarcely too much to say that not one Christian in a thousand guides or tests his individual conduct by reference to those laws . d. Is it necessary that some part of mankind should persist in error to enable any to realise the truth? Answer: I affirm no such thing.
As mankind improve, the number of doctrines which are no longer disputed or doubted will be constantly on the increase. In that case, I should like to see the teachers of mankind ndeavouring to provide a substitute for it. Example: Socratic dialectics exemplified in the dialogues of Plato; School disputations of the Middle Ages: they were essentially a negative discussion of the great question of philosophy and life. Comment: It is the fashion of the present time to disparage negative logic”that which points out weaknesses in theory or errors in practice, without establishing positive truths.
Such negative criticism would indeed be poor enough as an ultimate result; but as a means to attaining any positive knowledge or conviction worthy the name, it cannot be valued too highly. Ill. When the conflicting doctrines share the truth between them; and the nonconforming opinion is needed to supply the remainder of the truth, of which the received doctrine embodies only a part. a. Most frequently, heretical opinions WOUld front the received truths as enemies, and setting themselves up, with similar exclusiveness, as the whole truth, because in the human mind, one-sidedness has always been the rule, and many-sidedness the exception . . Examples: 1) In the eighteenth century, when nearly all the instructed were lost in admiration of modern science, literature, and philosophy; with what a salutary hock did the paradoxes of Rousseau explode like bombshells in the midst, dislocating the compact mass of one-sided opinion, and forcing its elements to recombine in a better form and with additional ingredients. 2) In politics, it is almost a commonplace that a party of order or stability, and a party of progress or reform, are both necessary elements of a healthy state of political life, knowing and distinguishing what is fit to be preserved from what ought to be swept away. . Objection: Some received principles, especially on the highest and most vital subjects, are more than half-truth. Answer: Christian morality is a protest against Paganism . Its ideal is negative rather than positive; passive rather than active; Innocence rather than Nobleness; Abstinence from Evil, rather than energetic Pursuit of Good; in its precepts “thou shalt not” predominates unduly over “thou shalt. ” It holds out the hope of heaven and the threat of hell, as the appointed and appropriate motives to a virtuous life.
Doing what lies in it give to human morality an essentially selfish character, by disconnecting each man’s feelings of duty from the interests of his fellow creatures, except so far as a self-interested nducement is offered to him for consulting them. While in the morality of the best Pagan nations, duty to the state holds even a disproportionate place, infringing on the just liberty of the individual; in purely Christian ethics, that grand department of duty is scarcely noticed or acknowledged. I believe that the sayings of Christ are irreconcilable with nothing which a comprehensive morality requires.
This being so, I think ita great error to persist in attempting to find in the Christian doctrine that complete rule for our guidance which its author intended it to sanction and enforce, but only partially to provide. . I acknowledge that the tendency of all opinions to become sectarian is not cured by the freest discussion, but is often heightened and exacerbated thereby. But it is not on the impassioned partisan, it is on the calmer and more disinterested bystander, that this collision of opinions works its salutary effect. . We have now recognised the necessity to the mental well-being of mankind of freedom of opinion, and freedom of the expression of opinion, on four distinct grounds: l. If any opinion is compelled to silence, that opinion may be true. To deny this is to assume our own infallibility. II. Though the silenced opinion be an error, it may contain a portion of truth; it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. Ill.
Even if the received opinion be the whole truth; unless it is suffered to be vigorously and earnestly contested, it will be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. IV. The meaning of the doctrine itself will be in danger of being lost, or enfeebled and deprived of its vital effect on the character and conduct. 5. Objection: The free expression of all opinions should e permitted, on condition that the manner be temperate, and do not pass the bounds of fair discussion.
Answer: The gravest of the principal offences is, to argue sophistically , to suppress facts or arguments, to misstate the elements of the case, or misrepresent the opposite opinion. While regard to intemperate discussion, namely invective, sarcasm, personality, and the like, the denunciation of these weapons would deserve more sympathy if it were ever proposed to interdict them equally to both sides. Instead, only those who hold any unpopular opinion are often stigmatised as bad and immoral men.
This is the real morality of public discussion: One should have the calmness to see and honesty to state what his opponents and their opinions really are, exaggerating nothing to their discredit, keeping nothing back which tells, or can be supposed to tell, in their favour. Chapter 3 Of Individuality, as one of the Elements of Well-being 1. Let us next examine whether the same reasons do not require that men should be free to act upon their opinions, and to carry these out in their lives, without hindrance, either physical or moral, from their fellow-men, so long as it is at their own risk and peril. . Actions should not be as free as opinions . But it is desirable that in things which do not primarily concern others, individuality should assert itself. 3. The greatest difficulty in maintaining this principle is not the appreciation of means towards an acknowledged end, but in the indifference of persons in general to the end itself. People do not see that the free development of individuality is one of the leading essentials of well-being. l.
Wilhelm von Humboldt: The Sphere and Duties of Government “The end of man, or that which is prescribed by the eternal or immutable dictates of reason, and not uggested by vague and transient desires, is the highest and most harmonious development of his powers to a complete and consistent whole”; therefore, the object “towards which every human being must ceaselessly direct his efforts, and on which especially those who design to influence their fellow-men must ever keep their eyes, is the individuality of power and development”; for this there are two requisites, “freedom, and variety of situations”, from the union of which arise “individual vigour and manifold diversity,” which combine themselves in “originality. ” II. The question is one of degree. a. On one hand, it’s absurd to pretend that people ought to live as if experience had as yet done nothing towards showing that one mode of existence or of conduct is preferable to another. b. On the other, no one’s idea of excellence in conduct is that people should do absolutely nothing but copy one another.
It is the privilege and proper condition of a human being, arrived at the maturity of his faculties, to use and interpret experience in his own way. This is because : 1) Other people’s experience may be too narrow; or they may not have interpreted it rightly. 2) Their interpretation of experience may be correct, but unsuitable to im. 3) To conform to custom, merely as custom, does not educate or develop in him any of the qualities which are the distinctive endowment of a human being. Ill. It is supposed that to possess impulses of our own, and of any strength, is nothing but a peril and a snare. Yet desires and impulses are as much a part of a perfect human being as beliefs and restraints . a.
Strong impulses are only perilous when not properly balanced. It is not because men’s desires are strong that they act ill; it is because their consciences are weak. b. Energy may be turned to bad Uses; but more good may always be made of an energetic nature, than f an indolent and impassive one , because the same strong susceptibilities which make the personal impulses vivid and powerful, are also the source from which the most passionate love of virtue, and the sternest self-control are generated. IV. The human faculties of perception, judgment, discriminative feeling, mental activity, and even moral preference, are exercised only in making a choice.
He who lets the world choose his plan of life for him, has no need of any other faculty than the ape-like one of imitation. He who chooses his plan for himself, employs all his faculties. Thus, an intelligent following of custom, r even occasionally an intelligent deviation from custom, is better than a blind and simply mechanical adhesion to it. V. Once in some early state of society, the element of spontaneity and individuality was in excess. But society has now fairly got the better of individuality; personal impulses and preferences are now in deficiency. It does not occur to people to have any inclination, except for what is customary. Thus the mind itself is bowed to the yoke; they like in crowds. Human capacities are withered and starved . a.
Objection: According to the Calvinistic theory, the one great offence of man is self-will. All the good of hich humanity is capable is comprised in obedience. Answer: If it be any part of religion to believe that man was made by a good Being, it is more consistent with that faith to believe that this Being gave all human faculties that they might be cultivated and unfolded, not rooted out and consumed. b. There is a different type of human excellence from the Calvinistic: a conception of humanity as having its nature bestowed on it for other purposes than merely to be abnegated. “Pagan self-assertion ” is one of the elements of human worth, as well as “Christian self-denial. ” VI.
It is by cultivating the individuality, and calling t forth, within the limits imposed by the rights and interests of others, that human beings become a noble and beautiful object of contemplation . Because in proportion to the development of his individuality, each person becomes more valuable to himself, and is therefore capable of being more valuable to others. a. Objection: The stronger specimens of human nature may encroach on the rights of others. Answer: As much compression as is necessary to prevent this from happening cannot be dispensed with; but for this there is ample compensation in the point of view both of human development and of himself . To be held to igid rules of justice for the sake of others, develops the feelings and capacities which have the good of others for their object. VII.
Therefore, individuality is the same thing with development, and it is only the cultivation of individuality which produces, or can produce, well-developed human beings. 4. It is necessary further to show, that these developed human beings are of some use to the undeveloped”to point out to those who do not desire liberty, and would not avail themselves of it, that they may be in some intelligible manner rewarded for allowing other people to make use of it without hindrance. I. They might possibly learn something from them. Originality is a valuable element in human affairs. a. There is always need of persons to commence new practices, and set the example of more enlightened conduct, and better taste and sense in human life, without which human life would become a stagnant pool. b.
There is only too great a tendency in the best beliefs and practices to degenerate into the mechanical. Without originality, such dead matter WOUld not resist the smallest shock from anything really alive, and there would be no reason why civilisation should not die out. II. In order to have genius, it is necessary o preserve the soil in which they grow. Persons of genius need more freedom because they are more individual than any other people . a. People are mostly indifferent to this. But for those unoriginal minds who cannot feel the use of it, originality opens their eyes; which being once fully done, they would have a chance of being themselves original. b.
The great tendency of things throughout the world is to render mediocrity the ascendant power among mankind. At present individuals are lost in the crowd. However, the initiation of all wise or noble things comes and must come from individuals. The honour and glory of he average man is that he is capable of following that initiative . Ill. A person’s own mode of laying out his existence is the best, because it is his own mode. People shall not be shaped all after one model for the mere reason that they have diversities of taste. a. Different persons require different conditions for their spiritual development, and cannot exist healthily in the same moral. b.
The general average of mankind today have no tastes or wishes strong enough to incline them to do anything unusual, and they consequently do not understand those who have, and class all such with the wild and intemperate hom they are accustomed to look down upon. The tendencies of the times cause the public to endeavour to make every one conform to the approved standard, which is to desire nothing strongly, and whose ideal of character is to be without any marked character, which is a bad idea, because: 1) Instead of great energies guided by vigorous reason, and strong feelings strongly controlled by a conscientious will, its result is weak feelings and weak energies, which therefore can be kept in outward conformity to rule without any strength either of will or of reason. ) The greatness of England is now all collective; ndividually small, we only appear capable of anything great by our habit of combining. 5. The despotism of custom is everywhere the standing hindrance to human advancement. The only unfailing and permanent source of improvement is liberty, since by it there are as many possible independent centres of improvement as there are individuals. The contest between the two constitutes the chief interest of the history of mankind. l. Thus, a people may be progressive for a certain length of time, and then stop when it ceases to possess individuality. II. Unfortunately, today, we tend to war against individuality. a.
We should think e had done wonders if we had made ourselves all alike; forgetting that the unlikeness of one person to another is generally the first thing which draws the attention of either to the imperfection of his own type, and the superiority of another, or the possibility, by combining the advantages of both, of producing something better than either. (The consequences are shown in the warning example of China. ) b. According to Wilhelm von Humboldt, there are two things necessary to human development, namely freedom and variety of situations. The assimilation of the latter is now promoted by: 1) Political changes to raise he low and to lower the high. 2) Extension of education to bring people under common influences. 3) Improvement in the means of communication to bring the inhabitants of distant places into personal contact, and keep a rapid flow of changes of residence between one place and another. ) The increase of commerce and manufactures to open all objects of ambition to general competition, so that the desire of rising becomes a character of all classes. 5) The complete establishment of the ascendancy of public opinion in the State to eliminate the very idea of resisting the will of the public. c. The solution is that he intelligent part of the public should be made to feel its value”to see that it is good there should be differences, even though not for the better. d. If the claims of Individuality are ever to be asserted, the time is now, while much is still wanting to complete the enforced assimilation. Mankind speedily become unable to conceive diversity when they have been for some time unaccustomed to see it. Chapter 4 Of the Limits to the Authority of Society over the Individual 1 .
Though society is not founded on a contract, every one who receives the protection of society owes a return for the benefit . This conduct consists in two things: l. Not injuring the interests of rights of one another. II. Each person’s bearing his share (to be fixed on some equitable principle) of the labours and sacrifices incurred for defending the society or its members from injury and molestation. These conditions society is justified in enforcing at all costs to those who endeavour to withhold fulfilment. Moreover, when an individual does harm to others without going to the length of violating any of their constituted rights, the offender may be justly punished by opinion, though not by law.