ON CRIMES AND PUNISHMENTS.

THE permanency of all social institutions depends on the enactment and execution of laws. It is proved by universal experience that, unless the passions and vices of men were controlled by the dread of temporal punishment, neither life nor property would be worth a single day's purchase. The strong would oppress the weak; the designing would overreach the unsuspicious; and, in cases where open force was baffled by caution, the reckless and unprincipled would never hesitate to compass their views by secret assassination or secret robbery. Hence has arisen the necessity, in all countries, of arming the legal tribunals with power to repress crime by punishment; but as punishment itself is an evil, as well as crime, and only justifiable because it is the less evil of the two, it is important to investigate the first principles of penal jurisprudence and fix with some precision the foundations on which they are established.

In the earlier periods of society, when the true principles of legislation were unknown, punishments were vindictive and sanguinary. The lex talionis suited the rude notions of a barbarous age, and an eye for an eye, and a tooth for a tooth, appeared to be a perfect standard of retributive justice. The cultivation of the fine arts, and the general advancement of literature, tended to soften the asperities of human nature; and, as civilization extended its influence, humanity followed in its train. The trial by ordeal, the use of the rack, and other cruel instruments of torture, were gradually discontinued, and, during the last century, the labours of Beccaria and Montesquieu prepared the way to a reform in criminal jurisprudence. To them Europe is principally indebted, as being the first who gave a death blow to reigning prejudices; but, notwithstanding their valuable efforts, and the writings of several philosophers who have succeeded them, the grand problems of penal law are yet imperfectly understood by the majority of mankind.

It is obvious that there exist only two possible ways in which punishment can be inflicted, to wit, either by pecuniary or corporal punishments. Hence arises the legal maxim: Qui non habet in crumenâ, luat in corpore: Those who are rich, must make compensation in money: those who are poor, must atone for their offences by incarceration, bodily labour, bodily torture, or death.

In different countries and at different periods, three systems of criminal law have prevailed, each of which has had its admirers. The first, breathing the spirit of Draco and of barbarism, affixed the punishment of death to every violation of the law. The second, somewhat less ferocious, inflicted certain, severe, degrading, and durable punishments: this has been called the principle of intimidation. The third, which is at present the popular plan, at least among the enlightened, expects to prevent crime by moral reformation,—and in that view they advocate the system of Sunday

schools and general education, and recommend the conversion of gaols into seminaries of instruction.

The grand desideratum in penal law is the exact adaptation of punishment to crime, for all punishment, be it remembered, is an evil, and the only consideration which justifies the magistrate in inflicting it at all, is the prevention of a greater evil. If it could be proved, for example, that the acquittal of a 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 whatever. 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 authorised to take away the life of one man to save the lives of thousands. Since then laws are made to extend and secure social happiness, and not to produce either general or individual 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 the repetition of the crime. This principle is indeed founded in the common feelings of humanity, and was recognized among the pagans :

Adsit

Regula peccatis, quæ pænas irroget æquas,

Ne scuticâ dignum, horribili sectere flagello.

A system of penal law which sanctions excessive punishment, that is to say, punishment disproportioned to the offence, can only be tolerated in a barbarous age, and it is one among the many advantages of education, to diffuse that spirit of social benevolence, which is based on Christian charity. The following extract from Eden's Principles of Penal Law will give some idea of the sanguinary character of our ancestors, who substituted revenge for justice, and gloried in perpetrating the most ruthless, the most savage, and the most revolting atrocities:

"The accomplished and sentimental Sir Thomas More caused Lutherans to be whipped, tortured, and burned in his presence. Archbishop Cranmer, with his own hand, led arians and anabaptists to the stake. Bonner, bishop of London, tore off the beard of a weaver, who refused to relinquish his tenets. In another instance of the same kind, he scourged a man till his arm ached with the exercise, and held the hand of a third to a candle to give him a specimen of burning, till the sinews and veins shrunk and burst. Even Wriothesly, chancellor of England, directed a young and beautiful woman to be stretched on the rack for having differed with him concerning the real presence with his own arm he tore her body asunder, and caused the mangled remains to be committed to the flames. In fine, infants born at the stake were thrown into the fire with their parents, as partaking of the same heresy."

These are not solitary or isolated instances of cruelty; numerous examples, equally horrible, might be adduced. National pride, one of the weakest of vulgar prejudices, which ambition flatters and inflames when it desires to kindle war, and plunder the unoffending people of neighbour. ing countries, who are then denounced as the natural enemies of the poor dupes who sally forth to slaughter, or to be slaughtered, national pride affects to shudder with horror at the merciless inquisition, at the thumb screws, and searing irons, and red hot pincers of the holy office; accursed be the memory of those monsters! But let us not forget to include in our reprobation our own countrymen, and, if we are now less ferocious than our ancestors, let us ascribe our moral improvement to the humanizing effects of education, and that philosophy which the fool cannot comprehend, which the bigot denounces as impiety, which the fopling sneers at as mystification, and from which the tyrant shrinks as from the glance of destiny.

Among the most appalling punishments inflicted by the old penal code of England, may be included the "peine forte et dure," and as the legal consequences of this practice are remarkable, it is presumed that the following statement will not prove unacceptable. When a criminal refused to plead to an indictment, and remained mute, he was adjudged to be contumacious; and, if he persisted in his silence, he was laid naked on his back with a heavy weight upon his chest, which was gradually increased, till he either pleaded or died. Such was the torture employed to extract an answer. It may readily be supposed that very few criminals remained obstinately contumacious; but there is one instance on record to the contrary, which is sufficiently curious to merit being here mentioned. A Mr. Calverly, of Yorkshire, suspected his wife of incontinence, and, in a paroxysm of rage, he murdered her. After having committed this horrid deed, he threw from the top of his house his seven children, who were suffocated to death in a moat which encircled his dwelling. He then mounted his horse, and rode to the neighbouring village, intending to kill another child, which was out at nurse; but conscience smote him on the road, and he delivered himself into the hands of justice. When put on his trial, he refused to plead to the indictment, and on these grounds :-if he had confessed the murder, then his estates would have been forfeited to the crown; had he committed suicide, which at one time he meditated, his surviving child would have been equally dispossessed of his inheritance. Mr. Calverly, therefore, upon being arraigned, remained mute, submitted to the punishment, and died under its infliction. In consequence of his thus dying without having been legally proved to be guilty, the law presumed him innocent, and his child entered into the enjoyment of his estates. This tragical story furnished the materials of the play called the "Yorkshire Tragedy," attributed by some critics to Shakspeare. The person who suffered was a captain of a vessel, accused of piracy in the

last

middle of the seventeenth century. The court in Newgate, now called the press yard, derives its name from having been the place in which the "peine forte et dure" was inflicted...

As additional evidence of the sanguinary character of the English penal code, and the unjust inequality between crime and punishment, we insert the opinions of two moderate politicians, both eminently qualified to give a sound judgment on this question: "Among the variety of actions," said Sir John Anstruther, in a speech he delivered in the House of Commons in 1811," that men are daily liable to commit, no less than two hundred have been declared by act of parliament to be felonies without benefit of clergy, or, in other words, to be worthy of instant death. When we inquire into the nature of the crimes of which this dreadful catalogue is composed, we shall find it to contain transgressions which scarcely deserve corporal punishment; we shall find it to omit atrocious enormities, and so to blend all distinctions of guilt, as to inflict the same punishment on the offender who steals to the amount of a few shillings in a shop, as upon the malefactor who murders his father."

Mr. Roscoe, in his tract on Penal Jurisprudence, has the following remarks: "To commit a murder,-or to free a person from arrest; to burn a dwelling-house and its inhabitants,—or to burn a hay-stack; to commit a parricide, or to obstruct a revenue-officer in the seizure of prohibited goods; to break into a dwelling-house at midnight,—or to cut down or otherwise destroy a tree in a garden; to poison a family,—or to wound or maim a cow; all these offences," continues our author, are liable to the same punishment death."

Notwithstanding the extreme severity of the penal code, crime has been more prevalent in England than in any other country,-a convincing proof that the severity of punishment defeats its own object. When offences, comparatively trifling, are declared by law to be capital crimes, parties injured will not prosecute, witnesses will not give evidence, juries will not convict, and judges will not condemn. The result has a two-fold bad effect, first, on society at large, secondly, on the individual culprit. In the former case, public justice is mocked at by the escape of the offender, and the law rendered a dead letter. In the second case, the offender himself, deriding the impotency of justice, and buoyed up by a false confidence, proceeds from petty misdemeanours to flagrant crimes, and at last terminates his career on the scaffold. But if punishments were milder and more fairly proportioned to the injury inflicted, juvenile delinquents would be arrested in their career, by suffering some mitigated form of chastisement, for it is now generally agreed that the certainty of punishment is infinitely more efficacious than the severity.

Nor is this the only evil of a sanguinary penal code. It has a direct tendency to kindle the most cruel and ferocious passions in all who are disposed to violate the law, and convert a thief into a murderer. Suppose

a highwayman to stop a traveller on the road and demand his money. He knows perfectly well that, if he is detected, he will be hanged; therefore, self-preservation renders it necessary for him to take the life, as well as the property of his victim. Now, if the law affixed a minor punishment to simple robbery on the highway, the great probability is, that motives of humanity would induce the highwayman to abstain from imbruing his hands in blood. But is it rational to suppose that, after having committed the first offence, he would hesitate to secure his own personal safety by perpetrating the blacker crime? We are firmly of opinion, that, except in cases where the offender is of an extremely vicious and merciless disposition, very few individuals robbed on the highway would also be murdered, but so long as the same punishment is affixed to both crimes, there can be very little chance of escape; for the highwayman, having to make the choice of two evils, either of sacrificing his victim or placing his own life in jeopardy, very naturally elects the alternative which conduces most to his own advantage. It is clearly against his interest to be merciful, for the person robbed may, at some future date, identify and bring him to the gallows. Is it not, then, clear that this injudicious severity of the penal code, and the disproportion between crime and punishment, operates as a direct incentive to murder? Does not the case we have supposed, to illustrate our argument, exemplify the common saying familiar to every wrong-doer, "I may as well be hanged for a sheep as a lamb."

England, who proudly puts herself forward in the van of civilization, has lagged behind the continental nations in the cause of humanity. Leopold, grand duke of Tuscany, imbibed the principles of Beccaria, and abolished the punishment of death throughout his dominions, in 1786. Frederick the Great abolished it in Prussia. It was put an end to in Austria by the emperor Joseph; and discontinued at Geneva in 1756, and in Sweden in 1773. Even in barbarous Russia there is no capital punishment for any crime but treason, and the mildness of the criminal code has no doubt tended to hasten the civilization of that country, for it is certain that frequent public exhibitions of spilling human blood engenders a ferocious and demoralizing spirit among the populace.

All crime is the offspring of the animal passions and the animal principles of action. These can only be regulated and controlled by the rational principles of action. As prevention is in all cases better thau cure, it becomes our legislators to inquire, whether an extensive system of national education would not prove more efficacious in repressing crime than a sanguinary penal code. Beccaria is of opinion, that no government has a right to punish its own subjects, unless it has previously taken care to instruct them in the knowledge of the laws and the duties of public and private life. The strong mind of William Penn grasped at both these objects, and provisions to secure their attainment were interwoven with his system of punishments. His laws enjoined all parents and guardians