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
dispassionately 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 assemblies; as such riotous meetings are in like
manner considered as more criminal than a private assault.
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 circumstances, so little effect upon
guilty associates, 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,
canals, 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 chastisement 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 Circumstances 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 class of public wrongs, the disproportionate
punishment is extremely shocking.
If, for example, a personal assault 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 passed 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 assigned 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_.
Few civil wars have been waged from considerations of Public Virtue,
or even for the security of Public Liberty. These desperate
undertakings are generally promoted and carried on by abandoned
characters, who seek to better their fortunes in the general havoc and
devastation of their country.--Those men are easily seduced from their
Loyalty who are apostates from private virtue.
To be secure therefore against those public calamities which, almost
inevitably, lead to anarchy and confusion, it is far better to improve
and confirm a nation in the true principles of natural justice, than
to perplex them by political refinements.
Having thus taken a general view of the principles applicable to
Punishments in general, it may be necessary, for the purpose of more
fully illustrating these reflections, briefly to consider the various
leading Offences, and their corresponding Punishments according to the
present state of our Criminal Law; and to examine how far they are
proportioned to each other.
High Treason is the highest civil Crime which can be committed by any
member of the Community.--After various alterations and amendments
made and repealed in subsequent reigns, the definition of this offence
was settled as it originally stood, by the Act of the 25th of Edward
III. stat. 5, cap. 2. and may be divided into seven different heads:
1. Compassing or imagining the Death of the King, Queen, or
Heir Apparent.
2. Levying War against the King, in his realm.
3. Adhering to the King's enemies, and giving them aid, in
the realm or elsewhere.[11]
[Footnote 11: It has been thought necessary, by the
Legislature, to explain and enlarge these clauses of the Act
25 _Ed._ III. as not extending, with sufficient
explicitness, to modern treasonable attempts. It is
therefore provided by the Act 36 _Geo._ III. _cap._ 7, "That
if any person (during the life of his present Majesty, and
until the end of the Session of Parliament next after a
demise of the Crown) shall within the realm, or without,
compass, imagine, invent, devise, or intend death or
destruction, _or any bodily harm, tending to death or
destruction, maim, or wounding, imprisonment, or restraint_
of the person of the King, his heirs, and successors, or to
deprive or depose him or them from his stile, honour, or
Kingly name; or to levy war against the King within this
Realm, in order by force to compel him to change his
measures; _or in order to put any force or constraint upon,
or to intimidate or overawe_, BOTH HOUSES, OR EITHER HOUSE,
OF PARLIAMENT; or to incite any foreigner to invade the
dominions of the Crown: and such compassings, &c., shall
express, utter, or declare, _by publishing any printing, or
writing_, or by _any other_ overt act or deed"--the offender
shall be deemed _a Traitor_, and punished accordingly.]
4. Slaying the King's Chancellor or Judge in the execution
of their offices.
5. Violating the Queen, the eldest daughter of the King, or
the wife of the Heir Apparent, or eldest Son.
6. Counterfeiting the King's Great Seal, or Privy Seal.
7. Counterfeiting the King's Money, or bringing false Money
into the kingdom.
This detail shews how much the dignity and security of the King's
person is confounded with that of his officers, and even with his
effigies imprest on his Coin.--To assassinate the servant, or to
counterfeit the type, is held as criminal as to destroy the Sovereign.
This indiscriminate blending of crimes, so different and
disproportionate in their nature, under one common head, is certainly
liable to great objections; seeing that the judgment in this offence
is so extremely severe and terrible, _viz. That the offender be drawn
to the gallows on the ground or pavement: That he be hanged by the
neck, and then cut down alive: That his entrails be taken out and
burned while he is yet alive: That his head be cut off: That his body
be divided into four parts: And that his head and quarters be at the
King's disposal_.--Women, however, are only to be drawn and
hanged:--though in all cases of treason, they were heretofore
sentenced to be burned: a cruel punishment, which, after being
alleviated by the custom of previous strangulation, was at length
repealed, by the Act 30 Geo. III. _c._ 48.
There are indeed some shades of difference with regard to coining
money; where the offender is only drawn and hanged; and that part of
the punishment which relates to being _drawn_ and _quartered_ is, to
the honour of humanity, never practised. But even in cases of the most
atrocious criminality, the execution of so horrid a sentence seems to
answer no good political purpose.--Nature shudders at the thought of
imbruing our hands in blood, and mangling the smoaking entrails of our
fellow-creatures.
In most Countries and in all ages, however, Treason has been punished
capitally.--Under the Roman Laws, by the _Cornelia Lex_, of which
Sylla, the Dictator, was the author, this Offence was created.--It was
also made a capital Crime when the Persian Monarchy became despotic.
By the Laws of China, Treason and Rebellion are punished with a rigour
even beyond the severity of our judgment, for the criminals are
ordained to be cut in _ten thousand_ pieces.
There is another species of Treason, called _Petty Treason_,
described by the Statute of the 25th of Edward the III. to be the
offence of _a Servant killing his Master, a Wife killing her Husband_,
or a _Secular or Religious slaying his Prelate_.--The Punishment is
somewhat more ignominious than in other capital offences, inasmuch as
a _hurdle_ is used instead of a _cart_.--Here again occurs a very
strong instance of the inequality of Punishments; for although the
principle and essence of this Crime is breach of duty and obedience
due to a superior slain, yet if a child murder his parents (unless he
serve them for wages) he is not within the Statute; although it must
seem evident to the meanest understanding that Parricide is certainly
a more atrocious and aggravated offence, than either of those
specified in the Statute.
By the _Lex Pompeia_ of the Romans, Parricides were ordained to be
sown [Transcriber's Note: sewn] in a sack with a _dog_, a _cock_, a
_viper_, and an _ape_, and thrown into the sea, thus to perish by the
most cruel of all tortures.
The ancient Laws of all civilized nations punished the crime of
Parricide by examples of the utmost severity.--The Egyptians put the
delinquents to death by the most cruel of all tortures--mangling the
body and limbs, and afterwards laying it upon thorns to be burnt
alive.
By the Jewish Law it was death for children to curse, or strike their
parents; and in China, this crime was considered as next in atrocity
to Treason and Rebellion, and in like manner punished by cutting the
delinquent in _one thousand_ pieces.
The Laws of England however make no distinction between this crime and
common Murder; while it is to be lamented that offences far less
heinous, either morally or politically considered, are punished with
the same degree of severity; and it is much to be feared, that this
singular inequality is ill calculated to inspire that filial awe and
reverence, to parents, which all human Laws ought to inculcate.
The offences next in enormity to Treason, are by the Laws of England,
denominated Felonies, and these may be considered as of two kinds,
_public_ and _private_.
Under the head of _Public Felonies_ we shall class the following:
having peculiar relation to the State.
1. Felonies relative to the Coin of the Realm.
2. ----------------- to the King and his Counsellors, &c.
3. ----------------- to Soldiers and Marines.
4. ----------------- to embezzling Public Property.
5. ----------------- to Riot and Sedition.
6. ----------------- to Escape from Prison.
7. ----------------- to Revenue and Trade, &c.
We consider as comprehended under _Private Felonies_ the following
crimes committed, 1. _Against the Life_, 2. _the Body_, 3. _The
Goods_, 4. _The Habitation of the Subject_.
Against 1. By Murder.
Life. 2. By Man-slaughter.
3. By Misadventure.
4. By Necessity.
Against the 1. Sodomy.
Body. 2. Rape.
3. Forcible Marriage.
4. Polygamy.
5. Mayhem.
Against 1. Simple Larceny.
Goods. 2. Mixt Larceny.
3. Piracy.
Against the 1. Arson.
Dwelling or 2. Burglary.
Habitation.
Those Crimes which we have denominated _Public Felonies_ being merely
of a political nature, it would seem that the ends of justice would be
far better answered, than at present, and convictions oftener
obtained, by different degrees of Punishment short of Death.
With regard to _Private Felonies_, it may be necessary to make some
specific observations----
The first, in point of enormity, is _Murder_, which may be committed
in two Ways:--first, upon _one's self_, in which case the offender is
denominated _Felo de se_ or a _Self-murderer_;--secondly, by killing
another person.
The Athenian Law ordained, that persons guilty of Self-murder should
have the hand cut off which did the murder, and buried in a place
separate from the body; but this seems of little consequence.--When
such a calamity happens, it is a deplorable misfortune; and there
seems to be a great cruelty in adding to the distress of the wife,
children, or nearest kin of the deceased, by the forfeiture of his
whole property; which is at present confiscated by Law.
By the Law of England, the judgment in case of Murder is, that the
person convicted shall suffer death and that his body shall be
dissected.
The Laws of most civilized nations, both ancient and modern, have
justly punished this atrocious offence with death. It was so by the
Laws of Athens, and also by the Jewish and Roman Laws.--By the Persian
Law Murderers were pressed to death between two stones; and in China,
persons guilty of this offence are beheaded, except where a
person kills his adversary in a duel, in which case he is
strangled.--Decapitation, by the Laws of China, is considered the most
dishonourable mode of execution.
In the ruder ages of the world, and before the manners of mankind were
softened by the arts of peace and civilization, Murder was not a
capital crime: Hence it is that the barbarous nations which over-ran
the Western Empire, either expiated this crime by private revenge, or
by a pecuniary composition.--Our Saxon ancestors punished this high
offence with a fine; and they too countenanced the exercise of that
horrid principle of revenge, by which they added blood to blood.--But
in the progress of civilization and Society, the nature of this crime
became better understood; private revenge was submitted to the power
of the Law; and the good King Alfred first made Murder a capital
offence in England.
In this case, as in that of Self-murder, the property of the murderer
goes to the State; without any regard to the unhappy circumstances of
the families either of the murdered or the guilty person, who may be
completely ruined by this fatal accident.--A provision which seems not
well to accord with either the justice or mildness of our Laws.
Man-slaughter is defined to be _The killing another without malice,
either express or implied: which may be either, voluntarily, upon a
sudden heat; or involuntarily, but in the commission of some unlawful
Act_. And the Punishment is, _that the person convicted shall be burnt
in the hand, and his goods forfeited_.--And offenders are usually
detained in prison for a time not exceeding one year, under the
Statutes regulating the Benefit of Clergy.
Homicide by _Misadventure_ is, when _one is doing a lawful act,
without intent to hurt another_, and _death ensues_.--For this offence
a pardon is allowed of course; but in strictness of Law the property
of the person convicted is forfeited; the rigour of which, however, is
obviated by a Writ of Restitution of his goods, to which the party is
now, by long usage, entitled of right; only paying for suing out the
same.
Homicide _by necessity_ or in _Self-defence_, is another shade of
Murder, upon which no punishment is inflicted: and in this is included
what the Law expresses by the word _Chance-medley_: which is properly
applied to such killing as happens in self-defence upon a sudden
rencounter. Yet, still by strictness of Law, the goods and chattels of
the person charged and convicted are forfeited to the Crown; contrary,
as it seems to many, to the principles of Reason and Justice.
It should be recollected that in all cases where the Homicide does not
amount to Murder or Man-slaughter, the Judges permit, nay even direct,
a verdict of acquittal.--But it appears more consonant with the sound
principles of Justice, that the Law itself should be precise, than
that the property of a man should, in cases of _Misadventure_,
_Chance-medley_, and _Self-defence_ depend upon the construction of a
Judge, or the lenity of a Jury: Some alteration therefore, in the
existing Laws, seems called for in this particular.