4. _The want of a Public Prosecutor for the Crown, in all criminal cases, for the purpose of preventing fraud, delay and expence in the administration of Justice._
5. _The want of a more correct and regular System, for the purpose of obtaining the fullest and most authentic information, to avoid deceptions in the obtaining of pardons._
6. _The deficiency of the System of the_ Hulks.
7. _The want of an improved System with regard to the arrangements and disposal of Convicts--destined for hard labour or for transportation._
8. _The want of national_ Penitentiary Houses, _for the punishment and reformation of certain cla.s.ses of Convicts._
9. _The want of a more solemn mode of conducting Executions; whenever such dreadful examples are necessary for the furtherance of Public Justice._
Having thus explained the general features of the actually existing _Crimes_, and their probable causes, we shall in the next place proceed to some considerations on the present principles of _Punishment_ in this Country, as compared with those in other Nations and ages. It will then be requisite to enter into particular and minute details on both these subjects; and to offer some suggestions for the introduction of new and applicable laws to be administered with purity under a correct and energetic System of Police; which may be, in some degree, effectual in guarding the Public against those increasing and multifarious injuries and dangers, which are universally felt and lamented.
CHAP. II.
_Of Punishments in general.--The mode of ascertaining the degrees of Punishment.--The objects to be considered in inflicting Punishments--namely, Amendment--Example--and Retribution.--The Punishment of Death has little effect on hardened Offenders.--Examples of convicts exhibited in servile employments would make a greater impression.--Towards the rendering criminal laws perfect, Prevention ought to be the great object of the Legislature.--General Rules suggested for attaining this object, with ill.u.s.trations.--The severity of our laws with respect to Punishments--not reconcileable to the principles of morality, and a free government--calculated in their operation to debase the human character.--General Reflections on the Punishments authorised by the English Law.--The disproportion of Punishments, exemplified in the case of an a.s.sault, opposed to a larceny.--In seduction and adultery, which are not punishable as criminal offences.--The laws severe in the extreme in political offences, while they are lax and defective with regard to moral Crimes.--The necessity of enforcing the observance of religious and moral Virtue by lesser Punishments.--General Reflections applicable to public and private Crimes.--The dangers arising from the progress of immorality to the safety of the State.--The leading offences made capital by the laws of England considered, with the Punishment allotted to each; compared with, and ill.u.s.trated by, the custom of other countries, in similar cases, both ancient and modern: namely, High Treason--Pet.i.t Treason:--Felonies against Life, viz. Murder, Manslaughter, Misadventure, and Self-defence:--against the Body, comprehending Sodomy, Rape, Forcible Marriage, Polygamy, and Mayhem.--Against Goods or Property, comprehending Simple Larceny, Mixt Larceny, and Piracy,--and against the Habitation, comprehending Arson and Burglary.--Concluding Reflections relative to the severity of the Laws, and their imperfections with regard to Punishment--The new Code of the_ Emperor JOSEPH the Second, _shortly detailed.--Reflections thereon._
Punishment, (says a learned and respectable author) _is an evil which a delinquent suffers, unwillingly, by the order of a Judge or Magistrate; on account of some act done which the Law prohibits, or something omitted which the Law enjoins._
All Punishment should be proportioned to the nature of the offence committed; and the Legislature, in adjusting Punishment with a view to the public good, ought, according to the dictates of sound reason, to act on a comparison of the Crime under consideration, with other offences injurious to Society: and thus by comparing one offence with another, to form a scale, or gradation, of Punishments, as nearly as possible consistent with the strict rules of distributive justice.[9]
[Footnote 9: Beccaria, or Crimes and Punishments, Cap. 6.]
It is the triumph of Liberty, says the great Montesquieu, when the criminal laws proportion punishments to the particular nature of each offence.--It may be further added, that when this is the case, it is also the triumph of Reason.
In order to ascertain in what degree the Public is injured or endangered by any crime, it is necessary to weigh well and dispa.s.sionately the nature of the offence, as it affects the Community.--It is through this medium, that Treason and Rebellion are discovered to be higher and more dangerous offences than breaches of the peace by riotous a.s.semblies; as such riotous meetings are in like manner considered as more criminal than a private a.s.sault.
In punishing delinquents, two objects ought to be invariably kept in view.--
1. The Amendment of the Delinquent.
2. The Example afforded to others.
_To which may be added, in certain cases_,
3. Retribution to the party injured.
If we attend to Reason, the _Mistress of all Law_, she will convince us that it is both unjust and injurious to Society to inflict Death, except for the highest offences, and in cases where the offender appears to be incorrigible.
Wherever the amendment of a delinquent is in view, it is clear that his punishment cannot extend to death: If expiating an offence by the loss of life is to be (as it certainly is at present) justified by the necessity of making examples for the purpose of preventing crimes, it is evident that the present System has not had that effect, since they are by no means diminished; and since even the dread of this Punishment, has, under present circ.u.mstances, so little effect upon guilty a.s.sociates, that it is no uncommon thing for these hardened offenders to be engaged in new acts of theft, at the very moment their companions in iniquity are launching in their very presence into eternity.
The minds of offenders, long inured to the practice of criminal pursuits, are by no means beneficially affected by the punishment of Death, which they are taught to consider as nothing but a momentary paroxysm which ends all their distress at once; nay even as a relief, which many of them, grown desperate, look upon with a species of indifference, bordering on a desire to meet that fate, which puts an end to the various distresses and anxieties attendant on a life of criminality.
The effect of capital punishments, in the manner they are now conducted, therefore, as relates to example, appears to be much less than has been generally imagined.
Examples would probably have much greater force, even on those who at present appear dead to shame and the stigma of infamy, were convicts exhibited day after day, to their companions, occupied in mean and servile employments in Penitentiary Houses, or on the highways, ca.n.a.ls, mines, or public works.--It is in this way only that there is the least chance of making retribution to the parties whom they have injured; or of reimbursing the State, for the unavoidable expence which their evil pursuits have occasioned.
Towards accomplishing the desirable object of perfection in a criminal code, every wise Legislature will have it in contemplation rather to prevent than to punish crimes; that in the chastis.e.m.e.nt given, the delinquent may be restored to Society as an useful member.
This purpose may possibly be best effected by the adoption of the following general rules.
1. That the Statute-Laws should accurately explain the enormity of the offence forbidden: and that its provisions should be clear and explicit, resulting from a perfect knowledge of the subject; so that, justice may not be defeated in the execution.
2. That the Punishments should be proportioned and adapted, as nearly as possible, to the different degrees of offences; with a proper attention also to the various shades of enormity which may attach to certain crimes.
3. That persons prosecuting, or compelled so to do, should not only be indemnified from expence; but also that reparation should be made, for losses sustained by the injured party, in all cases where it can be obtained from the labour, or property of the delinquent.
4. That satisfaction should be made to the State for the injury done to the Community; by disturbing the peace, and violating the purity of Society.
Political laws, which are repugnant to the Law of nature and reason, ought not to be adopted. The objects above-mentioned seem to include all that can be necessary for the attention of Law-givers.
If on examination of the frame and tendency of our criminal Laws, both with respect to the principles of reason and State Policy, the Author might be allowed to indulge a hope, that what he brings under the Public Eye on this important subject, would be of use in promoting the good of Mankind, he should consider his labours as very amply rewarded.
The severity of the criminal Laws is not only an object of horror, but the disproportion of the punishments, as will be shewn in the course of this Work, breathes too much the spirit of DRACO,[10] who boasted _that he punished all crimes with death; because small crimes deserved it, and he could find no higher punishment for the greatest_.
[Footnote 10: He lived 624 years before the Christian aera.]
Though the ruling principle of our Government is unquestionably, _Liberty_, it is much to be feared that the rigour which the Laws indiscriminately inflict on slight as well as more atrocious offences, can be ill reconciled to the true distinctions of Morality, and strict notions of Justice, which form the peculiar excellence of those States which are to be characterised as free.
By punishing smaller offences with extraordinary severity, is there not a risque of inuring men to baseness; and of plunging them into the sink of infamy and despair, from whence they seldom fail to rise capital criminals; often to the destruction of their fellow-creatures, and always to their own inevitable perdition?
To suffer the lower orders of the people to be ill educated--to be totally inattentive to those wise regulations of State Policy which might serve to guard and improve their morals; and then to punish them for crimes which have originated in bad habits, has the appearance of a cruelty not less severe than any which is exercised under the most despotic Governments.
There are two Circ.u.mstances which ought also to be minutely considered in apportioning the measure of Punishment--_the immorality of the action; and its evil tendency_.
Nothing contributes in a greater degree to deprave the minds of the people, than the little regard which Laws pay to Morality; by inflicting more severe punishments on offenders who commit, what may be termed, _Political Crimes_, and crimes against property, than on those who violate religion and virtue.
When we are taught, for instance, by the measure of punishment that it is considered by the Law as a greater crime to coin a sixpence than to kill our father or mother, nature and reason revolt against the proposition.
In offences which are considered by the Legislature as merely personal, and not in the cla.s.s of public wrongs, the disproportionate punishment is extremely shocking.
If, for example, a personal a.s.sault is committed of the most cruel, aggravated, and violent nature, the offender is seldom punished in any other manner than by fine and imprisonment: but if a delinquent steals from his neighbour secretly more than the value of twelve-pence, the Law dooms him to death. And he can suffer no greater punishment (except the ignominy exercised on his dead body,) if he robs and murders a whole family. Some private wrongs of a flagrant nature are even pa.s.sed over with impunity: the seduction of a married woman--the destruction of the peace and happiness of families, resulting from alienating a wife"s affections, and defiling her person, is not an offence punishable by the Criminal Law; while it is death to rob the person, who has suffered this extensive injury, of a trifle exceeding a shilling.
The Crime of Adultery was punished with great severity both by the Grecian and the Roman Laws.--In England this offence is not to be found in the Criminal Code.--It may indeed be punished with fine and penance by the Spiritual Law; or indirectly in the Courts of Common Law, by an action for damages, at the suit of the party injured. The former may now (perhaps fortunately) be considered as a dead letter; while the other remedy, being merely of a pecuniary nature, has little effect in restraining this species of delinquency.
Like unskilful artists, we seem to have begun at the wrong end; since it is clear that the distinction, which has been made in the punishments between public and private crimes, is subversive of the very foundation it would establish.
Private Offences being the source of public crimes, the best method of guarding Society against the latter is, to make proper provisions for checking the former.--A man of pure morals always makes the best Subject of every State; and few have suffered punishment as public delinquents, who have not long remained unpunished as private offenders. The only means, therefore, of securing the peace of Society, and of preventing more atrocious crimes, is, to enforce by lesser punishments, the observance of religious and moral duties: Without this, Laws are but weak Guardians either of the State, or the persons or property of the Subject.
The People are to the Legislature what a child is to a parent:--As the first care of the latter is to teach the love of virtue, and a dread of punishment; so ought it to be the duty of the former, to frame Laws with an immediate view to the general improvement of morals.
"That Kingdom is happiest where there is most virtue," says an elegant writer.--It follows, of course, that those Laws are the best which are most calculated to promote Religion and Morality; the operation of which in every State, is to produce a conduct intentionally directed towards the Public Good.
It seems that by punishing what are called public Crimes, with peculiar severity, we only provide against present and temporary mischiefs. That we direct the vengeance of the Law against effects, which might have been prevented by obviating their causes:--And this may be a.s.signed in part as the cause of Civil Wars and Revolutions.--The Laws are armed against the _powers_ of Rebellion, but are not calculated to oppose its _principle_.