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PRINCIPLES OF PENAL LAW.
PUBLISHED ABOUT THE YEAR 1775.
The prevention of crimes should be the great object of the lawgiver ; whose duty it is, to have a severe eye upon the offence, but a merciful inclination towards the offender. It is from an abuse of language, that we apply the word “Punishment” to human institutions : vengeance belongeth not to man. Criminals, said Plato *, are punished, not because they have offended; for what is done can never be undone : but that for the future the criminals themselves, and such as see their punishment, may take warning, and learn to shun the allurements of vice. “+ Meti Suffeti, inquit Tullus, si ipse discere posses foedera ac fidem servare, vivo' tibi ea disciplina a me adhibita esset : nunc, quoniam tuum insanabile ingenium est, Tu tuo supplicio doce humanum genus ea sancta credere, quæ a te violata sunt.” It is the end then of penal laws to deter, not to punish.
When the rights of human nature are not respected, those of the citizen are gradually disregarded. Those æras are in history found fatal to liberty, in which cruel punishments predominate. Lenity should be the guardian of moderate governments : severe penalties, the instruments of despotism,
* De Legibus, p. 977.
may give a sudden check to temporary evils ; but they have a tendency to extend themselves to every class of crimes, and their frequency hardens the sentiment of the people. Une loi rigoureuse produit des crimes. The excess of the penalty flatters the imagination with the hope of impunity, and thus becomes an advocate with the oflender for the perpetrating of the offence.
The convicts, who have stolen * cloth from the tenters, fus. tian + from the bleaching ground, or a lamb from their landlord's pasture, krew the law to have assigned death, without the benefit of clergy, to each of their offences : but, in the clepth of ignorance and profligacy, mere instinct informed them, that common humanity would recoil at the idea, and they relied for their security on the ingenuity of mercy to evade the law.
Legislators should then remember, that the acerbiiy of justice deadens its execution; and that the increase of human corruptions proceeds, not from the moderation of punishments, but from the impunity of criminals.
In the promulgation of every new offence, let the lawgiver expose himself to feel what wretches feel; and let him not seem to bear hardest on those crimes, which, in his elevated station, he is least likely to commit. “Si les supplices en usage dans presque tout l'orient font horreur a l'humanite, c'est que le Despote, qui les ordonne, se sent au dessus des loix. Il n'en est pas ainsi dans les republiques ; les loix sont toujours douces, parce que celui qui les etablit, s'y soumet.” If this reasoning be founded in truth, it furnishes a
* 22 Car. II. c. 25. § 3.
De l'Esprit, t. ii. p. 68.
mortifying inference, that men are naturally cruel, when they can be so with safety.
Penal laws are to check the arm of wickedness; but not to wage war with the natural sentiments of the heart.
Obsolete and useless statutes should be repealed ; for they debilitate the authority of such as still exist and are necessary. Neglect on this point is well compared by Lord Bacon to the cruelty of Mezentius, who left the living to perish in the arms of the dead.
Persons carrying subjects out of the northern counties*, or giving black mail for protection, jailers forcing prisoners to become approvers t, masons confederating to prevent the statutes of labourers ţ, purveyors in certain cases @ though purveyance is abolished, are all capital offenders : and none shall bring pollardz and crockardz (which were foreign coins of base metal) into the realm, on pain of forfeiture of life and goods ||. The alterations in our government have rendered these particular provisions totally ireffective ; but there are other obsolete statutes, which exist, the possible instruments of mischief in the hand of tyranny.
Civil and criminal laws must accumulate, and become complicated, in proportion to the increased riches of the state, and to the security given to the liberties, lives, honours, and properties of the people. Despotic states admit a simplicity of legislation, the forms and principles of which, depend on the caprices of a weak and ignorant monarch, whose breast is the repository of precedents ; but it should be the primary ob
* 43 Eliz. c. 13.
+ 14 Ed. iii c. 10. # 3 Hen. vi c. I.
§ 28 Ed. i. stat. 3. c. 1. || 27 Ed. i. cx Rot. in Turr.
ject of free governments, to have the outlines of their privileges, fixed and determinate. When the laws for this purpose are explicit, it is the duty of the judge strictly to conform to them ; when they are otherwise, it is the immediate duty of the legislator to ascertain them.
It is not therefore sufficient, that the decision of the fact be guarded from the influence of fear and affection: the adjudication of the law should be a certain consequence of that decision. But, when the penalty prescribed bears an evident and excessive disproportion to the offence, the humanity of the judges will be interested in the evasion of it, “et magis valebunt acumina ingeniorum, quam auctoritas legis*.” And this is a consideration, which, exclusive of every motive of humanity, should induce the lawgiver carefuily to discuss the different modes of punishment, as applicable to the different degrees of moral and political guilt.
It is impossible to read the histories of executive justice in different governments, without shuddering at the very idea of those miseries, which men, with unrelenting ingenuity, have devised for each other. In some countries it hath been usual to sew up criminals in the warm skins of beasts, and in this condition to expose them to wild dogs ; in others, their limbs are torn asunder by horses; in others, recourse is had to crucifixions, burnings, boilings, flayings, famishings, 'impalements; and other modes of destruction, equally shocking to decency and humanity.
66 Merciful heaven ! Thou rather with thy sharp and sulphurous bolt Split'st the unwedgeable and guarled oak,
* Bac. de Augm. Scient.
Than the soft myrtle : O but man, proud man,
This imputation of tyranny and cruelty hath at different periods been applicable to every government, of which we have any authentic history. Livy, in respect to his couutrymen, hath endeavoured to establish a different inference in his account of the punishment of Metius Suffetius ; Erinde, “ duabus admotis quadrigis, in currus earum distentus illigatur Netius; deinde in diversum iter equi concilaii, lacerum in utroque curru corpus, qui inhæserant vinculis membra, portantes. Avertêre omnes a tantû fæditate spectaculi oculos. Primum, ultimumque illud supplicium apud Romanos exempli parum memoris legum humanarum fuit; in aliis gloriari licet, nulli gentium mitiores placuisse punas +.” We know that national benevolence ought to be the concoinitant of national liberty, and are therefore inclinable to give credit to this assertion; but it will not be found in any degree reconcileable to the united testimony of many other historians. The modes of capital punishment, used by the Romans, were at least as numerous, and as exceptionable, as those of other nations. The head of the malefactor was in somĆ cases fastened within the furca, and in this altitude he was whipped to death $; and this was distinguished by the name
* Meas. for Meas. + L. i. c. 28. I C. C. Caligula curatorem munerum ac venationum per conti. nuos dies in conspectu suo catomis verberatum, non prius occidit, quam offersus putrefacti cerebri odore.
Sueton. in vità Calig. c. 27. Bb