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The enormity of a crime, and not its frequency, justifies capital

merly seen (m), owes its origin not to the law of nature, but merely to civil society (8).

The practice of inflicting capital punishments, for offences are of human institution, is thus justified by that great and good jus man, Sir Matthew Hale (n): “when offences grow enormous, punishment. frequent, and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the great insecurity and danger of the kingdom or its inhabitants, severe punishment and even death itself is necessary to be annexed to laws in many cases by the prudence of lawgivers.” It is therefore the enormity, or dangerous tendency, of the crime, that alone can warrant any earthly legislature in putting him to death that commits it. *It is not its frequency only, [ *10 1 or the difficulty of otherwise preventing it, that will excuse our attempting to prevent it by a wanton effusion of human blood (9). For, though the end of punishment is to deter

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(8) It is strange that the learned judge's conclusion, vis, that theft itself is not an offence against natural rights, did not lead him to suspect the fallacy of the position, that the right of property owes its origin not to the law of nature, but merely to civil society, which he has also advanced in a former volume, (2 vol. p. 11.,) and which I have there presumed to controvert. If theft is not a violation of the law of nature and reason, it would follow that there is no moral turpitude in dishonesty. Thou shalt not steal, is certainly one of the first precepts both of nature and religion.-CH.

(9) However amiable this doctrine may appear in theory, it is scarcely reducible to practice, at least in the administration of our penal laws. Where the punishment of death is often ordained, and comparatively seldom inflicted, as in England, the frequency, and not the enormity of the crime, must be the standard of lenity or rigour. No man bas much fre quented our Courts of Criminal Justice, without having heard our judges ex.

pressly assign the increasing frequency
of a particular crime as the cause for
inflicting death in cases where it
would otherwise be, as it had previ-
ously been, commuted for some milder
punishment. The reduction of capi-
tal punishments has been for many
years anxiously contemplated by the
legislature as a highly desirable object,
and has recently been carried into effect
to a very considerable extent. We need
only mention here, generally, as in-
stances, the crimes of forgery, coining,
stealing in a dwelling-house, house-
breaking, sacrilege, horse-stealing, and
sheep-stealing; these and all other
instances of the reduction of capital
punishments effected since the time of
the learned commentator, will be found
specifically noticed under the titles of
the several offences to which they apply
throughout the volume. Other im-
provements of an important nature have
also been made in our system of punish-
ments, which, though specifically sta-
ted in their proper places, may be cur-
sorily mentioned here. The odious
practice of punishing females by whip-

men from offending, it never can follow from thence, that it is lawful to deter them at any rate and by any means; since there may be unlawful methods of enforcing obedience even to the justest laws. Every humane legislator will be therefore extremely cautious of establishing laws that inflict the penalty of death, especially for slight offences, or such as are merely positive. He will expect a better reason for his so doing, than that loose one which generally is given ; that it is found by former experience that no lighter penalty will be effectual. For is it found upon farther experience, that capital punishments are more effectual ? Was the vast territory of all the Russias worse regulated under the late Empress Elizabeth, than under her more sanguinary predecessors? Is it now, under Catherine II. less civilized, less social, less secure? And yet we are assured, that neither of these illustrious princesses have, throughout their whole administration, inflicted the penalty of death : and the latter has, upon full persuasion of its being useless, nay even pernicious, given orders for abolishing it entirely throughout her extensive dominions (0). But, indeed, were capital punishments proved by experience to be a sure and effectual remedy, that would not prove the necessity (upon which the justice and propriety depend) of inflicting them upon all occasions when other expedients fail. I fear this reasoning would extend a great deal too far. For instance, the damage done to our public roads by loaded waggons is universally allowed, and many laws have been made to prevent it; none of which have hitherto proved effectual. But it does not therefore follow, that it would be just for the legislature to inflict death upon every obstinate carrier, who defeats or eludes the provision of former statutes. Where the evil to be prevented is not adequate to the violence of the pre

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ping, has been abolished. The pillory, so objectionable on various accounts, has also, except in the cases of perjury, and subornation of perjury, been abolished, and even in those cases, is seldom or never inflicted; a fixed and positive measure of punishment has been a.

warded for many offences, and a classification of prisoners, with a discretionary power of awarding solitary confinement for short periods, has been introduced with every appearance of producing the most beneficial effects.

any case,

ventive, a sovereign that thinks seriously can never *justify [ *11] such a law to the dictates of conscience and humanity. To shed the blood of our fellow-creature is a matter that requires the greatest deliberation, and the fullest conviction of our own authority: for life is the immediate gift of God to man; which neither he can resign, nor can it be taken from him, unless by the command or permission of Him who gave it; either expressly revealed, or collected from the laws of nature or society by clear and indisputable demonstration.

I would not be understood to deny the right of the The right to legislature in any country to enforce its own laws by the punishment in death of the transgressor, though persons of some abilities doubted. have doubted it; but only to suggest a few hints for the consideration of such as are, or may hereafter become, legislators. When a question arises, whether death may be lawfully inflicted for this or that transgression, the wisdom of the laws must decide it: and to this public judgment or decision all private judgments must submit; else there is an end of the first principle of all society and government. The guilt of blood, if any, must lie at their doors, who misinterpret the extent of their warrant; and not at the doors of the subject, who is bound to receive the interpretations that are given by the sovereign power.

2. As to the end, or final cause of human punishments. The end of puThis is not by way of atonement or expiation for the crime nishment is the committed; for that must be left to the just determination thod therefore of the Supreme Being : but as a precaution against future portioned to offences of the same kind. This is effected three ways :

the purpose. either by the amendment of the offender himself; for which purpose all corporal punishments, fines, and temporary exile or imprisonment are inflicted: or, by deterring others by the fender appears. dread of his example from offending in the like way, “ ut ble. poena (as Tully (P) expresses it) ad paucos, metus ad omnes, perveniat ;" which gives rise to all ignominious punishments, and to such executions of justice as are open and * public: or [ *12 ] lastly, by depriving the party injuring of the power to do future mischief; which is effected by either putting him to death, or condemning him to perpetual confinement, slavery,

vniation for the crime prevention ome.

crime; the me

should be pro

Death, or perpetual disability, should be in. flicted only where the of fender appears to be incorrigi.

(p) Pro Cluentio, 46.—“ That few may be punished, and that the fear of

punishment may operate on all.”

or exile. The same one end, of preventing future crimes, is endeavoured to be answered by each of these three species of punishment. The public gains equal security, whether the offender himself be amended by wholesome correction, or whether he be disabled from doing any farther harm : and, if the penalty fails of both these effects, as it may do, still the terror of his example remains as a warning to other citizens. The method however of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means to exceed it: therefore the pains of death, and perpetual disability by exile, slavery, or imprisonment, ought never to be inflicted, but when the offender appears incorrigible : which may be collected either from a repetition of minuter offences; or from the perpetration of some one crime of deep malignity, which of itself demonstrates a disposition without hope or probability of amendment: and in such cases it would be cruelty to the public, to defer the punishment of such a criminal, till he had an opportunity of repeating perhaps the worst of villanies.

3. As to the measure of human punishments. From what must be discre. has been observed in the former articles we may collect, that

the quantity of punishment can never be absolutely determined by any standing invariable rule ; but it must be left to the arbitration of the legislature to inflict such penalties as are warranted by the laws of nature and society, and such as appear to be the best calculated to answer the end of pre

caution against future offences. The lex talionis Hence it will be evident, that what some have so highly shewn to be of- extolled for its equity, the lex talionis, or law of retaliation, quently imprac- can never be in all cases an adequate or permanent rule of dom an equiva. punishment. In some cases indeed it seems to be dictated jury done. This by natural reason; as in the case of conspiracies to do an duced in Eng- injury, or false accusations of the innocent: to which we may a. mu..add* that law of the Jews and Egyptians, mentioned by

Josephus and Diodorus Siculus, that whoever without suf[ *13 ] ficient cause was found with any mortal poison in his custody

should himself be obliged to take it. But, in general, the difference of persons, place, time, provocation, or other circumstances, may enhance or mitigate the offence; and in such cases retaliation can never be a proper measure of justice. If a nobleman strikes a peasant, all mankind will see, that, if a court of justice awards a return of the blow, it is

The measure of punishment

tionary in the legislature.

considered, and

ten unjust, fre.

ticable, and sel.

duced in England by the 37

but speedily abandoned.

more than a just compensation. On the other hand, retaliation may, sometimes, be too easy a sentence; as, if a man maliciously should put out the remaining eye of him who had lost one before, it is too slight a punishment for the maimer to lose only one of his : and therefore the law of the Locrians, which demanded an eye for an eye, was in this instance judiciously altered: by decreeing, in imitation of Solon's laws (9), that he who struck out the eye of a one-eyed man, should lose both his own in return. Besides, there are very many crimes, that will in no shape admit of these penalties, without manifest absurdity and wickedness. Theft cannot be punished by theft, defamation by defamation, forgery by forgery, adultery by adultery, and the like. And we may add, that those instances, wherein retaliation appears to be used, even by the divine authority, do not really proceed upon the rule of exact retribution, by doing to the criminal the same hurt he has done to his neighbour and no more; but this correspondence between the crime and punishment is barely a consequence from some other principle. Death is ordered to be punished with death: not because one is equivalent to the other, for that would be expiation, and not punishment. Nor is death always an equivalent for death: the execution of a needy decrepid assassin is a poor satisfaction for the murder of a nobleman in the bloom of his youth, and full enjoyment of his friends, his honours, and his fortune. But the reason upon which this sentence is grounded seems to be, that this is the highest penalty that man can inflict, *and tends most to the security of mankind, by re- [ *14 ] moving one murderer from the earth, and setting a dreadful example to deter others : so that even this grand instance proceeds upon other principles than those of retaliation. And truly, if any measure of punishment is to be taken from the damage sustained by the sufferer, the punishment ought rather to exceed than equal the injury ; since it seems contrary to reason and equity, that the guilty (if convicted) should suffer no more than the innocent has done before him : especially as the suffering of the innocent is past and irrevocable, that of the guilty is future, contingent, and liable to be escaped or evaded. With regard indeed to crimes that are incomplete, which consist merely in the intention, and are

(9) Pott. Ant. b. 1, c. 26.

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