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to renew their former practices, by the facility they experience in evading justice.
But this is not all: the adroit thief and receiver, availing themselves of their pecuniary resources, often escape, from their knowledge of the tricks and devices which are practised, through the medium of disreputable practitioners of the law; while the novices in delinquency generally suffer the punishment attached to conviction. If, as is the case in some other countries, evidence were allowed to be received of the general character of persons put upon their trial for offences, and the means by which they obtain their subsistence, so as to distinguish the old reputed thief and receiver, from the novice in crimes, the minds of jurymen would be often enlightened, to the furtherance of substantial justice; and a humane and proper distinction might be made between the young pupil of depravity, and the finished villain ; as well in the measure of punishment, as in the distribution of mercy.
The severity of the punishment, which at present attaches to crimes regarded by mankind as of an inferior nature, and which affect property in a trivial manner, is also deserving the most serious attention. It is only necessary to be acquainted with the modern history of the criminal prosecutions, trials, acquittals, and pardons in this country, in order to be completely convinced, that the progressive increase of delinquents, and the evils experienced by society from the multitude of petty crimes, result in a great measure from this single circumstance.
- It will scarcely be credited by those, whose habits of life do not permit them to enter into discussions of this sort, that by the laws of England, there are above one hundred and sixty different offences, which subjcct the parties who are found guilty, to death, without benefit of clergy. This multiplicity of capital punishments must, in the nature of things, defeat those ends, the attainment of which ought to be the object of all law, namely, the prevention of crimes.
In consequence of this severity, (to use the words of an admired writer,) “the injured, through compassion, will often to forbear prosecute : juries, through compassion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence; and judges, through compassion, will respite one half the convicts, and recommend them to royal mercy.
The Roman empire never flourished so much as during the æra of the Portian law, which abrogated the punishment of death for all offences whatever. When severe punishments, and an incorrect police were afterwards revived, the empire fell. It is not meant, however, to be insinuated that this would be, altogether, a proper system of criminal jurisprudence to be adopted in modern times.
In the present state of society it becomes indispensably necessary, that offences, which in their nature are highly injurious to the public, and where no mode of prevention can be established, should be punished by the forfeiture of life; but these dreadful examples should be exhibited as seldom as possible : for while on the one hand, such punishments often defeat the ends of justice, by their not being carried into execution ; so on the other, by being often repeated, they loso their effect upon the minds of the people. +
However much we glory (and we ought to glory) in the general excellence of our criminal law, yet there is no truth more clear and obvious than this :-" That this code exhi. bits too much the appearance of a heterogeneous mass, con
* Blackstone's Commentaries. + Can that be thought a correct system of jurisprudence, which inflicts the penalty of death, for breaking down the mound of a
cocted too often on the spur of the occasion (as Lord Bacon expresses it) and frequently without that degree of accuracy which is the result of able and minute discussion, or a due attention to the revision of the existing laws, or how far their provisions bear upon new and accumulated statutes introduced into parliament; often without either consideration or knowledge, and without those precautions which are always necessary, when laws are to be made which may affect the property, the liberty, and perhaps even the lives of thousands."
Some steps have, indeed, been taken in parliament, since this work first appeared, towards a general revision of our statute faw,* and which, it is hoped, will ere long be adopted. Whenever the time shall arrive that the existing laws, which form the present criminal code, shall be referred to able and intelligent men effectually to revise, consoliđate, and adjust the whole, in a manter best suited to the present state of society and manners, the investigation will unquestionably excite no little wonder and astonishment.
Penal laws, which are either obsolete or absurd, or which have arisen, from an adherence to rules of common law, when the reasons have ceased upon which these rules are founded ;
fish-pond, whereby the fish may escape; or cutting down a fruit tree in a garden or orchard; or stealing a handkerchief, or any trifle, privately from a person's pocket, above the value of 12d;.-while a number of other crimes of much greater enormity, are only punished with transportation and imprisonment; and while the punishment of murder itself is, and can be, only death, with a few circumstances of additional ignominy ?
* See the 6 Report from the Committee of the House of Commons on Temporary Laws,” May 13, 1796, and also the 6 Report from the Committee for Promulgation of the Statutes,” December 5, 1796, and the 66 Resolutions of a Committee of the whole house,” March 30, 1797.
and in short, all laws which appear not to be consonant to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind should be abrogated and repealed * (a).
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 ad done which the law prohibits, or something omitled which the law enjoins.
All punishment should be proportioned to the nature of the offence committed; and the legislature, in adjusting punishinent 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 t.
- 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.
(a) Chap. 1, p. 1 to p. 8. + Beccaria on Crimes and Punishments. Cap. 6.
În punishing delinquents, two objects ought to be invariably kept in view.
1. The amendment of the delinquent.
If we attend to reason, the mistress of all law, sile 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 expatiating 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 cvident 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 far as relates to example, appears to be much less than has been generally imagined.