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veillier, and Foissac, verified the existence of a scrofulous or tubercular obstruction of the glands of the neck, two small cavities full of pus, proceeding from the tubercles at the top of each of the lungs; the mucous membrane of the great cul-de-sac of the stomach was almost entirely destroyed. These gentlemen ascertained besides, that there was no indication of the presence of any syphilitic disease, whether old or recent.
With respect to the degree of credit to be attached to these statements, we really have nothing to say, but that they are placed before us on as sound a basis as it is possible for human evidence to be put on. Thus, then, we are strongly urged to believe in the existence of facts which are altogether contrary to our experience. Is it possible, one may reasonably ask, if such things can happen? Is it possible that individuals, under any circumstances, can see through their shut eyelids, and can be suddenly endowed, by any ceremony conducted by another person, with knowledge and foresight such as no mortal was ever endowed with before? These are questions which will suggest themselves to every reasoning mind. One admonition, however, is applicable to those who are interested in contemplating such subjects as these. Experience has proved, that the influences which may be exercised over the nervous powers of man, are altogether unlimited both in their extent and in their nature. Hence is it always unwise, and even irrational, for any one to say, on a subject so mysterious, that this fact is impossible, and that that fact could never have taken place. Let us humbly and diligently inquire, but not decide. Vast and beneficial are the uses of deliberation in such matters. We are not at liberty to doubt when evidence is positive; and if only half of what we have read in Mr. Colquhoun's work be founded in truth, how magnificent is the prospect of utility, in the largest sense of that word, which science, in this particular department, affords us.
Art. II. — Teoria Delle Leggi Della Sicurezza Sociale.
Theory of the Laws for the Security of Society. By GUIVANNI CARMIGNANI, Knight of the Order of Merit, and Professor of the University of Pisa. 4 vols. 8vo. Pisa. 1832.
Up to a comparatively recent era in the history of European civilization, the theory acted on in every community where a legislative power existed, was that the best method of putting down crime was to denounce against its commission the heaviest of penalties. The severer the punishment, thought our ancestors, the greater will be the dread of incurring it. That this erroneous view is not quite obliterated from the minds of intelligent men, may be easily proved by a reference to some late proceedings of the French
chambers. During the discussions of the 28th April, 1832, which took place on the penal code, several members showed by their speeches how deeply they had imbibed the principles of this false theory'; they considered the efficacy of a penal law to consist altogether in the influence which its denunciation of extreme punishment would have in preventing men from committing crime. This notion has been the source of a series of penal laws in many countries; and, though the cruelty which characterised them had been frequently the theme of complaint, yet it was only in modern times that the deficiency of those laws to effect the object for which they had been framed, was made manifest to the eyes of every civilized nation in the globe. Italy counts amongst her sons some of the earliest and the most useful apostles of the new principles, among which are the names of Beccaria, Filangieri, and, as a worthy successor of such men, Carmignani, the author of the present important work. In France the doctrine has been zealously and ably diffused by Cousin, Guizot, the Duc de Broglie, &c. ; whilst in England the names of Romilly and Mackintosh have derived their chief lustre from their connection with its advocacy. The object of the labours of these illustrious writers has been to prove that the threat of punishment is not sufficient to deter from crime, and that regarded in its real character, it is only a means of expiation.
The principle which enforces the belief that human societies cannot be maintained without coercion and restraint, is discussed at considerable length by M. Carmignani, who opposes it not merely with zeal, but with a powerful artillery of reasoning. The instincts, this writer contends, of human nature would always directly tend to the happiness and security of society, whilst the laws which they possess, should be the result principally of experience, and the judgment exercised upon the facts which that experience had collected. These laws would constitute what is called natural law, and as such would necessarily from their origin, command the obedience of every community. But then it is further made apparent by the author, that the aid of political law is essential to the execution of the natural law. In all cases where the happiness of society is to be attained, the principle of utility is that which prevails ; but when the safety of society is to be provided for, when danger menaces it either in the persons of its members or their property, then the paramount principle to be acted on is that of necessity. It is evident, then, that social happiness is the consequence of the natural tendencies of men's instincts, whilst the security of society must result from their united deliberations ; and, in this case, the law is not the guide of human actionsit is rather the limit to them. Such being the case, it follows that the members of society ought to have the power of maintaining their safety, and therefore they are justified in making laws for that purpose. But that purpose fulfilled, they
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have no right to go farther. If such principles as these were in action, it would follow that no act would be an offence except that which is injurious to society. Now, though every act of this nature is morally, as well as legally, an offence, still the legislature, in punishing it, has no right to go upon any other criterion than the amount of the injury to society, and certainly not upon the quantity of perverse malice which may have actuated the delinquent.
One of the most interesting parts of these volumes, is the series of pages devoted to the consideration of the question as to the degree of guilt in certain cases where physical and moral causes can be traced as having had influence on the individual committing the offence. Under this head, M. Carmignani calls our attention to a variety of important questions. He unhesitatingly condemns the practice of nearly all legislatures, in fixing too early an age, such as that of sixteen, as the period when youth ceases to afford impunity to crime. With respect to attempts to commit offences, the author would propose to make a very careful distinction. By the word attempt, he understands some act maliciously done, and having the apparent character of being a suitable means for the completion of a crime. He shows, next, that this attempt should never be punished with the same severity as the crime itself, inasmuch as in the latter case the safety of society is not violated, it is merely put in danger.
In speaking of the principles by which the infliction of punishment by a state should be modified, M. Carmignani contends that no tribunal ought to assume the power of imitating Divine justice, and to punish an offender merely by way of making him expiate his crime. No other consideration, he maintains, should enter into the question of the amount of punishment, save that which exclusively referred to the safety of the state ; and even then a government is morally obliged to keep strictly within the bounds of actual necessity.
The author recommends the constant exercise of moral power to restrain the tendency to crime; and hence, that all manifestations on the part of a government of its power to punish crime, should, as much as possible, bear the character of being combinations, in which prudence and strength are guided by justice. It is a great error to look upon punishment as a sort of compensation for crime; and the greatest calamities have followed from the adoption of a principle which holds out that the threat of punishment will be most successful when its denunciation is most severe. M. Carmignani considers it altogether impolitic to attempt to make their punishment the means of moral improvement to delinquents. We, however, are far from agreeing with the author in these views ; and we are persuaded that very different ones from those avowed would have been entertained by M. Carmignani, were he acquainted with the beneficial consequences of measures adopted in the United States of America, and in Geneva, founded on the principle of moral correction. Indeed, it would appear that there is no attribute of state punishment so precious in the eyes of our learned professor, as its certainty; and, if that be secured, every thing else, he seems to be convinced, will go smoothly and successfully forward. Every government, therefore, should make it a point to satisfy, by every means in its power, that portion of society in which there is the greatest tendency to crime, that the application of punishment, in case it is provoked, will be as certain as the return of the morning sun. This assurance is the only resource of a state that seeks to eradicate all disposition to criminal acts. Every bad project, observes the author-every wicked contrivanceis the effect of a speculation—a calculation founded on the chances of impunity. Break up those chances-destroy the possibility of impunity--and then, and then only, do you effectually stop crime. The legislature which inflicts the punishment should mix up with their laws for that purpose, a sentiment of generosity which would induce them to avoid every sort of cruelty, every thing in the shape of unnecessary severity, as nothing can be more unwise, in any view of the case, in a government, than to reckon upon the gross feelings or insensibility of a people.
To that portion of the work of M. Carmignani, which treats of capital punishment, we directed our attention with the greater interest, inasmuch as Italy was the country in which, for the first time, the great proposal was promulgated for abolishing the penalty of death. It is evident that he feels himself in a dilemma as to the recommendation which he should offer in respect of this punishment. Theoretically, he would say, that no judge constituted by a state, has the power, on the part of the society composing that state, to take away the life of another, unless the end that is to be gained cannot be reached by milder means. The right of existence is the fundamental and primary attribute of a man when he enters into society, and it should stand good, under all circumstances, until he became the common enemy of society. An individual who perpetrates high treason, makes himself the foe of the whole community ; the death of such a person would be produced simply by the general impulse of society to rise up and kill the culprit ; and, therefore, the law, in consigning him to death, only decently and officially declares the natural conviction of society. Here, then, the punishment of death is indispensable ; it is inflicted, not for the purpose of frightening others from a similar crime, but it follows as a necessary consequence of the horror with which men are inspired against an intolerable nuisance. In all cases, then, which do not come under the description here set forth, the punishment of death is not only unjust, but it is impolitic, because insufficient as a menace, inasmuch as the threat confounds the effect of death already experienced with the contemplation of death yet to be undergone.
M. Carmignani shows, in several parts of his work, how mischievously his mind is acted on by the influence of the false theory which he holds, to the effect that there is no use in attempting to turn the circumstances of a captive criminal into the means of his moral amelioration. With such sentiments in his breast, it is not surprising that he should propose to attach infamy and civil death to certain classes of crime. But this proceeding would be not merely an act of weakness, but also one of guilt, because it assumes the incorrigibility of the human mind, under certain circumstances, and, indeed, very effectually contributes to realize the very theory which gave it birth. Experience shows that this speculation has no real foundation in human nature, and that great advantage may accrue from leaving to the unhappy delinquent a hope that, by repentance, he may assuage his evil fortune, and merit the forgiveness of the society which he had injured. In allotting the amount of the punishment according to the nature of the offence, M. Carmignani recommends that all crimes should be rated in importance according to the extent to which they prejudice the safety of society. Finding out the offence which is most injurious, that should be the one against which such a punishment ought to be denounced as would be calculated, from its mildness, its accordance with public opinion, and other necessary qualifications, to put a stop to the commission of the crime.
When the author comes to consider the constitution of the tri. bunals of criminal justice, it is wonderful to contemplate how bereft he is of his usual sagacity and liberality. There are two principles, he says, of criminal proceeding: the one is by open accusation, the other by inquisition or information. The first mode is essentially nothing more than a regular contest between two adversaries, each seeking to influence the judge in his favour, and using all the arts of rhetoric to do that which was formerly accomplished in the arena by mortal combat for similar purposes. In the second mode of prosecution, that by inquisition, M. Carmignani tells us (and he appears to be delighted with the opportunity of opening our eyes), that the judge performs his duty deliberately, and at first, in a secret manner, weighing every thing with the greatest caution, carefully investigating every fact, and accumulating the proofs only after the severest and most delicate analysis. We cannot follow the learned author through this portion of his work, and shall content ourselves with noticing his remarks on the institution of juries, which, in our humble judg. ment, he very unjustly disparages. He says, that, on a great many occasions, the administration of justice is not properly effected, unless those who decide are as good judges of the law as of the fact in a given case; but that such qualification is wanted in the class which most contributes to make up juries. The verdict of a jury is often capricious ; it is often given from mere impulse ; and is not to be relied on as an unimpeachable authority