lator than it is wont to do-Restitution or Compensation.* Since what are called criminal actions are commonly injuries committed by one man upon another, it appears to be a very obvious dictate of reason that the injury should be repaired; -that he from whom the thief steals a purse should regain its value; that he who is injured in his person or otherwise, should receive such compensation as he may. When my house is broken into and a hundred pounds' worth of property is carried off, it is but an imperfect satisfaction to me that the robber will be punished. I ought to recover the value of my property. The magistrate, in taking care of the general, should take care of the individual weal. The laws of England do now award compensation in damages for some injuries. This is a recognition of the principle; although it is remarkable, not only that the number of offences which are thus punished is small, but that they are frequently of a sort in which pecuniary loss has not been sustained by the injured party.

I do not imagine that in the present state of penal law, or of the administration of justice, a general regard to commpensation is practicable, but this does not prove that it ought not to be regarded. If in an improved state of penal affairs, it should be found practicable to oblige offenders to recompense by their labour those who had suffered by their crime, this advantage would attend, that while it wouid probably involve considerable punishment, it would approve itself to the offender's mind as the demand of reason and of justice. This is no trifling consideration; for in every species of coercion and punishment, public or domestic, it is of consequence that the punished party should feel the justice and propriety of the measures which are adopted.

The writer of these Essays would be amongst the last to reprobate a strict adherence to abstract principles, as such; but some men, in their zeal for such principles, have proposed strange doctrines upon the subject of punishment. It has been said that when a crime has been committed it cannot be recalled; that it is a "past and irrevocable action," and that to inflict pain upon the criminal because he has committed it, "is one of the wildest conceptions of untutored barbarism." No one perhaps would affirm that, in strictness, such a motive to punishment is right; but how, when an offence is commit

"The law of nature commands that reparation be made." Mor. and Pol. Phil. b. 6, c. 8. And this dictate of nature appears to have been recognized in the Mosaic law, in which compensation to the suffering party is expressly required.

ted, can you separate the objects of punishment so as not practically to punish because the man has offended? If you regulate the punishment by its legitimate objects, you punish because the offender needs it; and as all offenders do need it, you punish all, which amounts in practice to nearly the same thing as punishing because they have committed a crime. However, as an abstract principle, there might be little occasion to dispute about it; but when it is made a foundation for such doctrine as the following, it is needful to recall the supreme authority of the Moral Law: "We are bound, under certain urgent circumstances, to deprive the offender of the liberty he has abused. Further than this, no circumstance can authorize us. The infliction of further evil, when his power to injure is removed, is the wild and unauthorized dictate of vengeance and rage." This is affirmative; and in turn I would affirm that it is the sober and authorized dictate of justice and good-will. But indeed why may we restrain him? Obviously for the sake of others; and for the sake of others we may also do more. Besides, this philosophy leaves the offender's reformation out of the question. If he is so wicked that you are obliged to confine him lest he should commit violence again, he is so wicked that you are obliged to confine him for his own good. And, in reality, the writer himself had just before virtually disproved his own position. "Whatever gentleness," he says, "the intellectual physician may display, it is not to be believed that men can part with rooted habits of injustice and vice without the sensation of considerable pain." But, to occasion this pain in order to make them part with vicious habits is to do something "further" than to take away liberty.

even

Respecting the relative utility of different modes of punishment and of prison discipline, we have little to say, partly because the practical recognition of reformation as a primary object affords good security for the adoption of judicious measures, and partly because these topics have already obtained much of the public attention. One suggestion may, however, be made, that as good consequences have followed from making a prisoner's confinement depend for its duration on his conduct, so that if it be exemplary the period is diminished, there appears no sufficient reason why the parallel system should not be adopted of increasing the original sentence if his conduct continue vicious. There is no breach of

reason or of justice in this. For the reasonable object of pun* Godwin: Enq. Pol. Just. v. ii. p. 748, 751.

ishment is to attain certain ends, and if, by the original sentence, it is found that these ends are not attained, reason appears to dictate that stronger motives should be employed.— It cannot surely be less reasonable to add to a culprit's penalty if his conduct be bad, than to deduct from it if it be good. For a sentence should not be considered as a propitiation of the law, nor when it is inflicted should it be considered, as of necessity, that all is done. The sentence which the law pronounces is a general rule-good perhaps as a general rule, but sometimes inadequate to its end. And the utility of retaining the power of adding to a penalty is the same in kind, and probably greater in degree, than the power of diminishing it. In one case the culprit is influenced by hope, and in the other by fear. Fear is the more powerful agent upon some men's minds, and hope upon others. And as to the justice of such an institution, it appears easily to be vindicated; for what is the standard of justice? The sentence of the law? No; for if it were, it would be unjust to abate of it as well as to add. Is it the original crime of the offender? No; for if it were, the same crime, by whatever variety of conduct it was afterwards followed, must always receive an equal penalty. The standard of justice is to be estimated by the ends for which punishments are inflicted. Now, although it would be too much to affirm that any penalty, or duration of penalty, would be just until these ends were attained, yet surely it is not unjust to endeavour their attainment by some additions to an original penalty when they cannot be attained without.

CHAPTER XIII.

PUNISHMENT OF DEATH.

Of the three objects of punishment, the punishment of death regards but one-Reformation of minor offenders: Greater criminals neglected— Capital punishments not efficient as examples-Public executionsPaul-Grotius-Murder-The punishment of death irrevocable-Rousseau-Recapitulation.

I SELECT for observation this peculiar mode of punishment on account of its peculiar importance.

And here we are impressed at the outset with the consid

eration, that of the three great objects which have just been proposed as the proper ends of punishment, the punishment of death regards but one; and that one not the first and the greatest. The only end which is consulted in taking the life of an offender, is that of example to other men. His own reformation is put almost out of the question. Now if the principles delivered in the preceding chapter be sound, they present at once an almost insuperable objection to the punishment of death. If reformation be the primary object, and if the punishment of death precludes attention to that object, the punishment of death is wrong.

To take the life of a fellow-creature is to exert the utmost possible power which man can possess over man. It is to perform an action the most serious and awful which a human being can perform. Respecting such an action, then, can any truth be more manifest than that the dictates of Christianity ought especially to be taken into account? If these dictates are rightly urged upon us in the minor concerns of life, can any man doubt whether they ought to influence us in the greatest? Yet what is the fact? Why, that in defending capital punishments, these dictates are almost placed out of the question. We hear a great deal about security of property and life, a great deal about the necessity of making examples; but almost nothing about the Moral Law. might be imagined that upon this subject our religion imposed no obligations; for nearly every argument that is urged in favour of capital punishments would be as valid and as appropriate in the mouth of a Pagan as in our own. Can this be right? Is it conceivable that, in the exercise of the most tremendous agency which is in the power of man, it can be right to exclude all reference to the expressed will of God?

It

I acknowledge that this exclusion of the Christian law from the defences of the punishment, is to me almost a conclusive argument that the punishment is wrong. Nothing that is right can need such an exclusion; and we should not practise it if it were not for a secret perception, that to apply the pure requisitions of Christianity would not serve the purpose of the advocate. Look for a moment upon the capital offender and upon ourselves. He, a depraved and deep violator of the law of God-one who is obnoxious to the vengeance of heaven-one, however, whom Christ came peculiarly to call to repentance and to save- -Ourselves, his brethrenbrethren by the relationship of nature-brethren in some degree in offences against God-brethren especially in the trembling hope of a common salvation. How ought beings so

situated to act towards one another? Ought we to kill or to amend him? Ought we, so far as is in our power, to cut off his future hope, or, so far as is in our power, to strengthen the foundation of that hope? Is it the reasonable or decent office of one candidate for the mercy of God to hang his fellow-candidate upon a gibbet? I am serious, though men of levity may laugh. If such men reject Christianity, I do not address them. If they admit its truth, let them manfully show that its principles should not thus be applied.

No one disputes that the reformation of offenders is desirable, though some may not allow it to be the primary object. For the purposes of reformation we have recourse to constant oversight to classification of offenders to regular labourto religious instruction. For whom? For minor criminals. Do not the greater criminals need reformation too? If all these endeavours are necessary to effect the amendment of the less depraved, are they not necessary to affect the amendment of the more? But we stop just where our exertions are most needed; as if the reformation of a bad man was of the less consequence as the intensity of his wickedness became greater. If prison discipline and a penitentiary be needful for sharpers and pickpockets, surely they are necessary for murderers and highwaymen. Yet we reform the one and hang the other!

Since, then, so much is sacrificed to extend the terror of example, we ought to be indisputably certain that the ter ror of capital punishment is greater than that of all others.We ought not certainly to sacrifice the requisitions of the Christian law unless we know that a regard to them would be attended with public evil.* Do we know this? Are we indisputably certain that capital punishments are more efficient as examples than any others? We are not. We do not know from experience, and we cannot know without it.— In England the experiment has not been made. The punishment therefore is wrong in us, whatever it might be in a more experienced people. For it is wrong unless it can be shown to be right. It is not a neutral affair. If it is not indispensably necessary, it is unwarrantable. And since we do not know that it is indispensable, it is, so far as we are concerned, unwarrantable.

And with respect to the experience of other nations, who will affirm that crimes have been increased in consequence of the diminished frequency of executions? Who will affirm

*We ought not for any reason to do this; but I speak in the present paragraph of the pretensions of expediency.