« ElőzőTovább »
Examples would probably have much greater force, even on those who appear at present 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 re-imbursing the state, for the unavoidable ex, pence which their evil pursuits have occasioned.
Towards accomplishing the desireable object of perfection in a criminal code, every wise legislature will have it in contemplation rather to prevent than to punish crimes; that irr the chastisement given, the delinquent inay 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 expense; 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 pro. perty 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 abovementioned seem to include all that can be necessary for the attention of lawgivers.
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, breaths too much the spirit of Draco, * who boasted that “he punished all crimes with death ; because small crimes deserved it, and he could find no other punishment for the greatest.”
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 ?
* He lived 624 years before the Christian æra.
To suffer the lower orders of the people to be ill educatedto 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 mere. ly 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
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 past over with impunity : the seduction of a married woman—the de
struction 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 (a).
IMPERFECT in many respects as the criminal law appears, from what has been detailed and stated in the preceding chapters, and much as the great increase of capital offences, crea
ted during the last and present century, is to be lamented :i it cannot be denied that several changes have taken place in
the progress of society, favourable to the cause of humanity, and more consonant to reason and justice, in the appropriation and the mode of inflicting punishments.
The benefit of clergy, which for a long period exempted clerical people only, from the punishment of death in cases of felony, was by several statutes * extended to peers, women, and all persons able to read ; who, pleading their clergy, suf
fered only a corporal punishment, or a year's imprisonment'; TM and those men who could not read, if under the degree of
peerage, were hanged t.
This unaccountable distinction was actually not removed : until the 5th. of Queen Anne, cap. 6, which extended the
benefit of clergy to all who were intitled to ask it, whether they could read or not:
(a) Chap. 2, p. 29 to p. 35. * 1 Edward VI. cap. 12: 21 Jac. I. cap. 6: 3 and 4. William and Mary, cap. 9: 4 and 5 William and Mary, cap. 24.
In the course of the present ‘century, several of the old sanguinary modes of punishment have been either, very properly abolished by acts of parliament, or allowed, to the bonor of humanity, to fall into disuse :-such as burning alive (par. ticularly women) cutting off hands or ears, slitting nostrils, or branding in the hand or face ; and among lesser punishments, falling into disuse, may be mentioned, the ducking-stool. -The punishment of death for felony (as has already been observed) bas existed since the reign of Henry I. nearly 700 years.- Transportation is commonly understood to have been first introduced, anno 1718, by the act of the 4th George 1. cap. 11; and afterwards enlarged by the act 6th of George I. c c. 23, which allowed the court a discretionary power to order felons, who were by law entitled to their clergy, to be transported to the American plantations for seven or fourteen years, according to circumstances.
Since that period the mode of punishment has undergone several alterations : and many crimes which were formerly considered of an inferior rank, have been rendered capital ; which will be best elucidated by the following catalogue of offences divided into six classes according to the law now in force :
1. Crimes punishable by the deprivation of life; and where upon the conviction of the offenders, the sentence of death must be pronounced by the judge.—Of these, it has been stated, the whole, on the authority of Sir William Blackstone, including all the various shades of the same offence, is about 160 in number.
The principal are the following: Arson, or wilfully and maliciously burning a House, Baras
with Corn, &c. see page 56. . Attempting to kill Privy Councillors, &c.