It

as possible. As illustrations of this class, it will be sufficient for our present purpose to mention Lord Jeffreys and Lord Norbury. Now, which of the two, classes would we have our judges imitate? It is certain that a Jeffreys or a Norbury would be much more likely to please us when we are in a sanguinary mood, than a Hale or a Mansfield; the latter would hardly be more willing to gratify us in that respect than those of our own judges whom we blame most for their unwillingness to hang all who are brought before them. may be well to bear in mind that neither Hale* nor Mansfieldt gave entire satisfaction in his time; both were often censured by the ruling power, on the ground that their conduct was calculated to encourage crime, rather than to suppress it; and many well-meaning people believed that the ruling power was right. Jeffreys and Norbury, especially the former, were, on the contrary, great favorites with the ruling power, because each rendered prompt and cheerful obedience, when told to hang as many as possible. Nor was it alone the ruling power that approved this; it was equally approved of by a large portion of that class who regard the halter as one of the most useful instruments of civilization.

Before we attempt to determine which was right or wrong, let us consider for a moment, how is crime to be suppressed, only premising that while the memory of Hale and Mansfield are held in veneration by succeeding ages, the memory of Jeffreys and Norbury, each of whom died a miserable death, is regarded with execration, as indellibly stamped with infamy. That crime should be suppressed in some way, no honest man denies; but the best and wisest men of all nations have denied, solemnly and indignantly, that the best

The

*It is related of Hale, that, having a young man brought before him once, on the charge of burglary, for having broken a window and obtained a loaf of bread when hungry, his lordship directed the jury to acquit the prisoner. A verdict of guilty was rendered, nevertheless; but the judge refused to act upon it. jury resisted for days, but finally acquited the young man. Several years afterwards, the chief-justice was received with more than ordinary pomp by the high sheriff, while on circuit in a northern county. His lordship expostulated kindly against the excessive expense incurred on his account, when the sheriff replied, "Don't blame me for showing my gratitude to the judge who saved my life when I was an outcast."

A person was once arraigned before Lord Mansfield for stealing a trinket, for which the penalty, at this time, was death, provided the price of the article was

way to suppress it is to kill as many of the malefactors as possible, or to inflict on them as much suffering as possible. Men of this class who have devoted most attention to the subject tell us that, on the contrary, as little suffering should be inflicted as would be likely to suppress any particular kind of crime. The jurisprudence of every modern nation is indebted to Italy; the principles of our best laws we derive from that country. No one understood the nature of law better than Cicero, and his opinion is, that there can be no real justice without beneficence.* In the same spirit, he calls justice the mistress and queen of all the virtues,† meaning in each case that, far from being vindictive to the prisoner brought before him, no matter what may be the nature of his crime, the judge should be as lenient to him as possible. Lest there might be any doubt of his views on this subject, he expressed the earnest hope that his consulship should be distinguished by the total abolishment of the death penalty.+

Nor did Cæsar deliver a nobler or more eloquent speech than that in which he pleaded in the senate house for the lives of those already convicted of having taken a prominent part in the conspiracy of Cataline. The most eloquent and touching passages in his celebrated appeal are those in which he seeks to impress on his colleagues that they should divest their minds of all passion; that they should not permit themselves to entertain any vindictive feeling against the condemned, horrible as were the atrocities of which they had been guilty; that, in short, they should not allow the crimes of Lentulus and his accomplices to cause them to consult their anger rather than their own dignity and fame.§

forty shillings. The judge directed the jury to find that the stolen jewel was worth less than this, when the prosecutor indignantly exclaimed, "What, my lord, my gold trinket not worth forty shillings? Why, the fashion alone cost me twice the money!" His lordship turned to the jury, without a moment's hesitation, and said, "Gentlemen, as we all stand in need of God's mercy, let us not hang a man for fashion's sake."

*

Justitiæ conjuncta est beneficitia.-De Offic. L. i., c. 7.

† Hæc una virtus omnium est domina et regina virtutum.-De Offic, L. iii., c. 6. Pro Sexto Roscio.

§ Hoc item vobis povidendum est, P. C., ne plus valeat apud vos P. Lentuli et cæterorum scelus quam vestra dignitas; neu magis iræ vestræ quam famæ consulatis.-Sallust, Bel. Cat.

Beccaria is still more opposed to severity than his countryman of the classic times. The former fully agrees with Montesquieu that every punishment which does not arise from absolute necessity is tyrannical. "As for the death penalty," says Beccaria, "it is pernicious to society from the example of barbarity it affords. If the passions, or the necessity of war, have taught men to shed the blood of their fellow-creatures, the laws, which are intended to moderate the ferocity of mankind, should not increase it by examples of barbarity, the more horrible as this punishment is usually attended with formal pageantry."* We do not quote Beccaria because we agree with him, so far as to oppose capital punishment in all cases; but all will admit that the accused should get a fair, dispassionate trialt-the public as well as the judge and jury should remember that excellent principle of Roman jurisprudence, adopted, at least in theory, by the legislators and publicists of England, that it were better that a dozen murderers should escape punishment rather than that one person accused of murder should be condemned and executed while innocent. But who will deny that the obvious tendency of the excitement produced by every homicide more or less aggravated in its character, committed in any of our principle cities, but especially in the city of New York, is to cause the conviction of the accused, whether guilty or innocent? We are well aware that if the principle just alluded to has not been formally adopted into our jurisprudence, it is quite as fully carried out in practice, as it ever was in either Rome or EngEngland; in other words, it is quite certain that for every one who is condemned and executed in this country, while innocent of the crime laid to his charge, a hundred of whose guilt there can be little doubt are allowed to escape. It is fortunate that the really innocent rarely if ever suffer death in this country at the hands of the law; but it is very unfortunate that so large a portion of our worst criminals escape punishment at the present day, while crime is more prevalent among us than it has been at almost any other Essay on Crimes and Punishments, by the Marquis Beccaria.

† See Montesquieu Esprit des Lois, Liv., chs. ili., v., ix.

time.

It is, indeed, this deplorable condition of affairs

that has prompted us to write the present paper.

But there are reasons both for the increase of crime and for the escape of so many criminals which are too generally overlooked. It should be borne in mind that there never was so great a war as our late rebellion, which did not cause a large increase of crime; a glance at the history of any of the great nations of Europe will serve to illustrate this. It appeared from a report presented to parliament by the English attorney-general, in 1820, that during the two years succeeding the restoration of peace in 1815, murders and assassinations had increased 500 per cent.; and it was shown in the same report that the number of those who escaped exhibited a percentage nearly equally large as compared to those who had been wont to escape before the war.*

In France the increase of crime was equally large; in short, life and property had become so insecure in both countries that each had to adopt special measures for their protection. The government of France found it necessary to make important alterations in its penal code,† while that of England had to make a large increase to its police force, as well as to "amend" some of its principal criminal laws, so as to increase their severity.

After the close of the Crimean war there was a considerable increase of crime. Our readers may remember that robberies, murders, and assassinations, became very common both in England and France, although the increase was by no means so great as it was after the close of the wars of Napoleon, for the reason, that the former did not continue as long as the latter, and that so large a number of the people were not engaged in it; yet it may be remembered that even at the close of the Crimean war all the governments engaged in it had to adopt measures more or less stringent for the protection of life and property.

No such precautions have yet been adopted in this country. Without waiting to inquire here whether such ought to be

* See the Blue Book for 1822; also Peel's Digest Revising the Criminal Laws, and 9th George IV., 1828," &c., &c.

† Vide Commentaire sur le Code pénal. Par M. Carnot. Liv. 1, art. 7.

adopted, we will remark that if the statistics of crime in the United States during the past three years be compared with the statistics of England and France for the years 1816, 1817, and 1818, it will be found that, after all, our condition is no worse in that respect than was that of either of those countries, especially England, under similar circumstances, if, indeed, it be quite so bad. But were the facts otherwise; did the comparison show that robberies, murders, and assassinations, have been more prevalent in this country since the close of the rebellion than they were in France or England between the years 1815 and 1820, the excess could be rationally accounted for, as we shall show before we close, without assuming that the American people have become so demoralized that there can be no hope for any permanent improvement in their moral condition until the republic is converted into a monarchy.

But incredible though it may seem to many, that assumption is very generally entertained at the present moment in several of the principal countries of Europe. It is true that our people are to blame themselves to a considerable extent for the prevalence of this impression in Europe; they are too ready to indulge in the gloomiest forebodings and to make the worst charges against our most important institutions whenever any crime of unusual atrocity is committed. In embodying those charges in startling denunciations, the newspapers merely act as the exponents of public sentiment. But their denunciations are reproduced throughout Europe as evidence, that, notwithstanding the suppression of the rebellion, the great republic is tottering to its fall. Lest the pictures drawn by our own journals-undoubtedly for the purpose of doing good-might not be accepted as true-lest they might be regarded only as illustrations of American exaggeration-they are corroborated by the journals in foreign languages published in our principal cities. find such articles in our French, Spanish, and German papers.

We

As a specimen of what is done in this way, which, whatever may be the intention of the writers, has a tendency to bring discredit on our institutions, we turn to a