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our memory, rather that picture of a future golden age painted by the hand of the prophet-when the wolf shall dwell with the lamb, and a child shall be their guide.
"I cannot refuse myself the pleasure of stating two other facts, which need no comments.-During the yellow fever in 1793, it was very difficult to find attendants for the sick in the hospital at Bush Hill. They had recourse to the prison. The request was made, and the danger of the service required was explained. As many as were wanted immediately volunteered in this dangerous service. They were all faithful to their trust, even to the conclusion of the tragical scene, and never asked for any salary while the term which had been prescribed for their imprisonment lasted. The women gave another proof of goodness: They were requested to give up their wooden bedsteads for the use of the sick in the hospitals. Of their own accord, and eagerly, they offered the beds themselves!-What a difference between these women, emulous as they seem to have been of the virtues of les sœurs de la Charité, and the women of New Zealand, who were worse than the men!What a difference between these Philadelphia prisoners, who went to tend the sick at the hazard of their lives, and the convicts of Botany Bay, who actually set fire to the hospitals and the prisons filled with their own fellow-sufferers! If the instances of good conduct of the American prisoners were only to be considered as a temporary suspension of vice and of crimes, there would be one great point gained; but we shall see that the reformation goes further still. Captain Turnbull assures us, that not five out of a hundred of these prisoners after they recovered their liberty were ever put into prison again for new offences."
Spirituous liquors are absolutely excluded from the prisons both at New York and at Philadelphia; and one of the governors of the Penitentiary-house at New York states, that many who had come to prison with constitutions enfeebled by intemperance and debauchery, had under the regimen to which they were there subject recovered their health and vigour.-Both M. de Liancourt and Captain Turnbull have entered into the most exact details on this subject. We learn from them, that since the adoption of this system the fees of the physician, which had amounted annually to above twelve hundred dollars, have been reduced to one hundred and sixty.
We next come to Capital Punishments. Formerly the punishment of death was rendered more horrible in many cases by the cruel modes of execution, and by the infliction of various species of torture. We rejoice, with our author, that we are saved the description of all those instruments of torture, of all those barbarous modes of execution, which have been abolished by the governments of Europe, or, where not formally abolished, have fallen into disuse.
"Let us enjoy this happy effect of the progress of knowledge. There are few occasions on which philosophy can offer to Governments more just and honourable congratulations."
The chapter on the long-contested subject of the Expediency of Capital Punishments is eloquent and energetic; but it is not a mere popular declamation. It is in truth what it professes to be-a summary of all the arguments in favour of capital punishments; and a comparison of these with the reasons, which may be urged for substituting other punishments in their stead. Some of the general observations, which occur in the course of this discussion, are well worthy of attention.
"Even if we consider those unhappy times, when a government degenerates into anarchy or tyranny, we may observe that capital punishments established by law, are ready prepared means of which it is more easy to make an unjust use than of most other modes of punishment; a tyrannical government might, it is true, at any time re-establish the legality of the punishment of death, even though it might have been abolished by the legislator. But such an innovation is not quite easy; it places violence in too open a light, it sounds the tocsin which alarms public opinion. Tyranny is much more at her ease when she can act under the veil of the laws, when she appears to follow only the ordinary course of justice, and when she finds public opinion accustomed to the species of punishment she wishes to inflict. The Duke of Alva, ferocious as he was, would never have dared to sacrifice his millions of victims in the Low-Countries, had it not been the received opinion of the times, that heresy was punishable with death. Biren, not less cruel than the Duke of Alva,-Biren, who peopled the deserts of Siberia with exiles, only mutilated his victims, because mutilation was a punishment in use at that period in his country; he did not dare to put them to death, because capital punishments were not customary. Here is a strong reason why we should avail ourselves of peaceable times to destroy those arms which people forget to fear when they are covered with rust; but which it is, alas! too easy to sharpen again, when the passions bring them again into use."
The collateral bad consequences of capital punishments are numerous; and there is great danger in inflicting the punishment of death for minor offences, contrary to public opinion. Instead of preventing, this tends to multiply crimes, by preparing for them sanctuaries in the pity of prosecutors and of jury-men, in the mercy of judges, and in the general sense of humanity. Our author had expatiated on this subject particularly as it relates to British jurisprudence. But his editor abridged much of what had been said on these points; because, just as this part of the work was going to the press, he found himself anticipated, and perceived that his arguments could no longer have the force of novelty. The subject was brought before parliament by Sir Samuel Romilly, who published afterwards his admirable Observations on the Criminal Law of England as it relates to Capital Punishments, and on the Mode in which it is executed.'
Mr. Dumont says this treatise ought to be read more than once; the style, which is still nearly that of a speech, carries the reader
on too rapidly. It is only after returning to it, and reading it over again, that we fully perceive all its depth of thought, and all the. range of observation and experience, which it comprehends. No wonder. It is the fruit of the profound attention of a man of superior abilities, who has never lost sight of this object; who has studied the criminal laws of Europe; and who has observed all the changes, which have been made in them during the last thirty years. Can it be doubted that this study and comparison of laws on a great scale must enlarge, and strengthen the understanding, more than the mere exclusive study of the jurisprudence of any single nation? Those, who have seen nothing out of England, are absolutely astonished, and incredulous, when they hear of the infrequency of crimes in countries where capital punishments have been abolished, or have been reserved for extraordinary cases. One of the bills brought into parliament by Sir Samuel Romilly on the penal laws, obtained the sanction of the legislature; five other bills of the same nature have passed the House of Commons with a continually increasing majority; and after reading the speeches of able statesmen in the House of Lords on this subject, there seems every reason to hope, that our criminal code will in time be rendered worthy of the British constitution, and of the good sense and humanity of the English nation.
"An immediate effect of the discussions which have taken place deserves to be remarked. In England and in Ireland many masters of cotton and linen manufactories, exposed by the nature of their business to great depredations, have united in petitioning for the abolition of the pain of death for this particular species of theft; alleging as their reason, that the severity of the law protects the thieves much more than it protects them."
The next general division of this work-" Des Peines privatives," 'On Punishments, which operate as Privations,' comprehends all that affect in this manner property, such as confiscations, forfeitures, fines and penalties; or such as affect reputation; as public admonitions, reprimands, penitentiary punishments in ecclesiastical courts, -the being declared incapable of holding certain offices in the state or incapable of giving evidence in a court of justice, or of receiving the benefit of certain civil or religious institutions. Under this head comes outlawry, excommunication, and all, in short, which, affecting the commercial credit, the public or private honour of an individual, can thus lessen his safety in society, or his social happiIn explaining what is meant by les peines de la sanction morale,—those pains and penalties, which are inflicted not by law, but by public opinion,-our author gives us a beautiful description of the feelings and situation of a man who has committed an action which degrades him in public opinion, which deprives him of the
protection of public esteem, and which excommunicates him from the common benefits and pleasures of society.
"To form an adequate conception of the manner in which an individual is punished by (what I call the moral sanction) public opinion, we must observe the change which takes place with regard to him, the moment he has committed an action which public opinion condemns:-from that moment he loses a portion of the esteem, affection, and good-will which he enjoyed. In all his habitual connections or accidental intercourse with society, he perceives that he is no longer treated as he was formerly; that some people are no longer so well disposed to do him good offices; that to others he is become an object of malevolence of malevolence which may act openly or secretly. Who can calculate or foresee the consequences of such a change? The dependance of each individual upon others is such, that the manner in which they are disposed towards him operates on the source of all his pleasures and pains. Every instant life seems coloured or faded by the reflection of the sentiments of our fellow creatures. At each instant the human heart dilates or contracts from the delightful proofs of their esteem, or the harsh expression of their disdain—an act of benevolence may save a man's life—the refusal of a service may be the cause of his death-at all events
'Abstract what others feel, what others think;
All pleasures sicken, and all glories sink.'
The sensibility to honour and shame, and consequently the power of public opinion over individuals, varies according to their sex, their education, their rank, their fortune, their professions, and many other circumstances. But though these may differ widely, though public opinion may never act equably on all degrees, yet it acts continually, and, time taken into the account, the power is im
"The higher the civilization of a country, the higher is this power raised. A popular government exalts it to its highest pitch, a despotic government reduces it to little or nothing. Whatever be the form of government, it is obviously of great consequence to the virtue and happiness of a state, that public opinion and law should speak the same sentiments, and should agree in their decisions. When the legislator decrees any ignominious punishment, that is to say, any which depends solely on the power of shame, he makes an appeal to the whole community, he calls upon the public to treat the culprit with contempt. The legislator draws, if we may so express it, a bill of exchange on public opinion. If the bill be protested, the imprudent drawer is the sufferer. In this point of view, ignominious punishments may be considered as dangerous instruments, which recoil and wound the hand that does not use them skilfully. But well-managed, how advantageous they are! When the legislator calls public opinion (la sanction morale) to his assistance; by thus trusting to it, he brings it into higher credit, and increases its force. When he announces the loss of honour as a great punishment, he renders honour a treasure of which he raises the value of possession in the eyes of each individual But the legislator cannot at his will or pleasure stamp disgrace or dishonour on certain actions or on certain offences. There are some which do
do not excite public animadversion, or excite it only in a feeble degree. For instance, in England,-venality in certain elections, many species of frauds against the revenue, and in particular smuggling, these are points in which popular sentiments are in direct opposition to those of the legislator. There are others on which they are wavering, undecided, or too weak to second his intentions ;-of this class we may mention duelling as an example."
For an excellent discussion on the difficult subject of duelling, we are referred, to avoid repetition, to the 2d vol. 14th and 15th chapters of the treatise on legislation. On the laws regarding libels, and those which relate to smuggling, we find in this part of the work some judicious remarks.
"Where law and public opinion do not coincide, a legislator (says our author) should not yield to erroneous popular opinion: this would be to abandon the helm when the vessel is in the midst of rocks and quicksands. It is in these difficult cases that he should use all his art to reclaim public opinion, and to direct it in favour of the laws. For this purpose the legislator has many and great means of influence."
The whole class of punishments which affect honour, beginning with simple blame, and going on to the "line extreme of human infamy," are passed in review: and as they pass, the power and utility of each is examined. In a species of this class, ignominy and personal insult are combined; the person of the offender is not actually touched, but the idea of his person is suggested by association, and thus by proxy he is exposed to public shame. We are amused by some of these ingenious devices, by some of these symbolic and emblematic punishments. For instance:
"Formerly among the Persians, if a man of distinguished rank committed certain faults, his person was exempt from punishment, but his clothes represented him, and received a public whipping. On the continent, it is still in some places the practice to execute in effigy criminals who abscond from justice. After an attempt on the life of one of the late kings of Portugal, many of the accomplices were punished in this manner. In Spain, a Duke de Medina Celi had committed an assassination: as the court could not, or would not, punish so powerful a nobleman with death, it condemned the duke to oblige all his pages to wear black stockings; and moreover obliged the duke to have a gibbet at the entrance to his palace. The late king allowed that the gibbet should be taken away, but the black stockings remained (at least till the year 1797) as a mark of infamy."
After having enumerated and appreciated all the means which the legislator hath of inflicting punishments which affect honour and reputation, and after suggesting all the milder modes by which he may influence public opinion, we next come to Pecuniary Punishments.
This chapter opens a vast field for discussion, into which we