CHAPTER IX.

OF CRIMES AND PUNISHMENTS.

their aid the advice of the judges, when any proportion to the difficulty and the necessity abstract question of law awaits their determi-of preventing them. Thus the stealing of nation; by the almost implicit and undisputed goods privately out of a shop may not, in its deference, which the uninformed part of the moral quality, be more criminal than the stealhouse find it necessary to pay to the learning ing of them out of a house; yet being equally of their colleagues; the appeal to the House necessary and more difficult, to be prevented, of Lords becomes in fact an appeal to the col- the law, in certain circumstances, denounces lected wisdom of our supreme courts of jus-against it a severer punishment. The crime tice; receiving indeed solemnity, but little must be prevented by some means or other; perhaps of direction, from the presence of the and consequently, whatever means appear neassembly in which it is heard and determined. cessary to this end, whether they be proporThese, however, even if real, are minute im- tionable to the guilt of the criminal or not, are perfections. A politician who should sit down adopted rightly, because they are adopted upto delineate a plan for the dispensation of pub- on the principle which alone justifies the inlic justice, guarded against all access to influ- fliction of punishment at all. From the same ence and corruption, and bringing together the consideration it also follows, that punishment separate advantages of knowledge and impar- ought not to be employed, much less rendered tiality, would find, when he had done, that he severe, when the crime can be prevented by had been transcribing the judicial constitution any other means. Punishment is an evil to of England. And it may teach the most dis- which the magistrate resorts only from its contented amongst us to acquiesce in the go- being necessary to the prevention of a greater. vernment of his country, to reflect, that the This necessity does not exist, when the end pure, and wise, and equal administration of may be attained, that is, when the public may the laws, forms the first end and blessing of be defended from the effects of the crime, by social union; and that this blessing is enjoyed any other expedient. The sanguinary laws by him in a perfection, which he will seek in which have been made against counterfeiting vain in any other nation of the world. or diminishing the gold coin of the kingdom might be just until the method of detecting the fraud, by weighing the money, was introduced into general usage. Since that precaution was practised, these laws have slept ; and an execution under them at this day would be deemed a measure of unjustifiable severity The same principle accounts for a circumstance THE proper end of human punishment is not which has been often censured as an absurdity the satisfaction of justice, but the prevention in the penal laws of this,and of most modern naof crimes. By the satisfaction of justice, Itions, namely, that breaches of trust are either mean the retribution of so much pain for so not punished at all, or punished with less rimuch guilt; which is the dispensation we ex-gour than other frauds. Wherefore is it, some pect at the hand of God, and which we are ac- have asked, that a violation of confidence. customed to consider as the order of things which increases the guilt, should mitigate the that perfect justice dictates and requires. In penalty? This lenity, or rather forbearance, what sense, or whether with truth in any sense, of the laws, is founded in the most reasonable justice may be said to demand the punishment distinction. A due circumspection in the choice of offenders, I do not now inquire: but I as- of the persons whom they trust; caution in lisert, that this demand is not the motive or oc- miting the extent of that trust; or the requir casion of human punishment. What would ing of sufficient security for the faithful disit be to the magistrate, that offences went al- charge of it; will commonly guard men from together unpunished, if the impunity of the injuries of this description; and the law will offenders were followed by no danger or pre-not interpose its sanctions to protect negligence judice to the commonwealth? The fear lest and credulity, or to supply the place of domesthe escape of the criminal should encourage tic care and prudence. To be convinced that him, or others by his example, to repeat the the law proceeds entirely upon this considerasame crime, or to commit different crimes, is tion, we have only to observe, that where the the sole consideration which authorises the in-confidence is unavoidable,-where no practifliction of punishment by human laws. Now that, whatever it be, which is the cause and end of the punishment, ought undoubtedly to regulate the measure of its severity. But this cause appears to be founded, not in the guilt of the offender, but in the necessity of preventing the repetition of the offence: and hence results the reason, that crimes are not by any government punished in proportion to their guilt, nor in all cases ought to be so, but in

cable vigilance could watch the offender, as in the case of theft committed by a servant in the shop or dwelling-house of his master, or upon property to which he must necessarily have access,-the sentence of the law is not less severe, and its execution commonly more certain and rigorous, than if no trust at all had intervened.

It is in pursuance of the same principle. which pervades indeed the whole system of penal jurisprudence, that the facility with

The ease with which crimes are committed or concealed, must be counteracted by additional penalties and increased terrors. The very end for which human government is established, requires that its regulations be adapted to the suppression of crimes. This end, whatever it may do in the plans of Infinite Wisdom, does not, in the designation of temporal penalties, always coincide with the proportionate punishment of guilt.

which any species of crimes is perpetrated, has ments, by carrying this law into strict execubeen generally deemed a reason for aggravat- tion. But when the care of the public safety ing the punishment. Thus, sheep-stealing, is intrusted to men, whose authority over their horse-stealing, the stealing of cloth from ten- fellow-creatures is limited by defects of power ters or bleaching grounds, by our laws, subject and knowledge; from whose utmost vigilance the offenders to sentence of death: not that and sagacity the greatest offenders often lie these crimes are in their nature more heinous hid; whose wisest precautions and speediest than many simple felonies which are punished pursuit may be eluded by artifice or concealby imprisonment or transportation, but be- ment; a different necessity, a new rule of procause the property, being more exposed, re- ceeding, results from the very imperfection of quires the terror of capital punishment to pro- their faculties. In their hands, the uncertaintect it. This severity would be absurd and un- ty of punishment must be compensated by the just, if the guilt of the offender were the im- severity. mediate cause and measure of the punishment; but is a consistent and regular consequence of the supposition, that the right of punishment results from the necessity of preventing the crime; for if this be the end proposed, the severity of the punishment must be increased in proportion to the expediency and the difficulty of attaining this end; that is, in a proportion compounded of the mischief of the crime, and of the ease with which it is executed.— The difficulty of discovery is a circumstance to be included in the same consideration. It constitutes indeed, with respect to the crime, the facility of which we speak. By how much therefore the detection of an offender is more rare and uncertain, by so much the more severe must be the punishment when he is detected. Thus the writing of incendiary letters, though in itself a pernicious and alarming injury, calls for a more condign and exemplary punishment, by the very obscurity with which the crime is committed.

There are two methods of administering penal justice.

The first method assigns capital punishment to few offences, and inflicts it invariably.

The second method assigns capital punishment to many kinds of offences, but inflicts it only upon a few examples of each kind.

The latter of which two methods has been long adopted in this country, where, of those who receive sentence of death, scarcely one in ten is executed. And the preference of this to the former method seems to be founded in the consideration, that the selection of proper obFrom the justice of God, we are taught to jects for capital punishment principally depends look for a gradation of punishment exactly pro- upon circumstances, which, however easy to portioned to the guilt of the offender: when perceive in each particular case after the crime therefore, in assigning the degrees of human is committed, it is impossible to enumerate or punishment, we introduce considerations dis-define beforehand; or to ascertain however tinct from that guilt, and a proportion so va- with that exactness which is requisite in legal ried by external circumstances, that equal descriptions. Hence, although it be necessary crimes frequently undergo unequal punish-to fix by precise rules of law the boundary on ments, or the less crime the greater; it is na-one side, that is, the limit to which the pu tural to demand the reason why a different nishment may be extended; and also that nomeasure of punishment should be expected from thing less than the authority of the whole leGod, and observed by man; why that rule, gislature be suffered to determine that bounwhich befits the absolute and perfect justice of dary, and assign these rules; yet the mitigathe Deity, should not be the rule which ought tion of punishment, the exercise of lenity, may to be pursued and imitated by human laws. without danger be intrusted to the executive The solution of this difficulty must be sought magistrate, whose discretion will operate upfor in those peculiar attributes of the Divine on those numerous, unforeseen, mutable, and nature, which distinguish the dispensations of indefinite circumstances, both of the crime and Supreme Wisdom from the proceedings of hu- the criminal, which constitute or qualify the man judicature. A being whose knowledge malignity of each offence. Without the powpenetrates every concealment, from the opera-er of relaxation lodged in a living authority, tion of whose will no art or flight can escape, either some offenders would escape capital pu and in whose hands punishment is sure; such rishment, whom the public safety required 10 a Being may conduct the moral government suffer; or some would undergo this punish. of his creation, in the best and wisest manner, ment, where it was neither deserved nor ne by pronouncing a law that every crime shall fi-cessary. For if judgment of death were resernally receive a punishment proportioned to the ved for one or two species of crimes only (which guilt which it contains, abstracted from any would probably be the case if that judgment foreign consideration whatever; and may tes-was intended to be executed without exceptify his veracity to the spectators of his judg-tion,) crimes might occur of the most danger

ous example, and accompanied with circumstances of the theft place it upon a level with stances of heinous aggravation, which did not those dangerous attempts to which the punish fall within any description of offences that the ment of death should be confined. It will be laws had made capital, and which consequent- still more difficult to show, that, without gross ly could not receive the punishment their own and culpable negligence on the part of the malignity and the public safety required. sufferer, such examples can ever become so What is worse, it would be known before- frequent, as to make it necessary to constitute hand, that such crimes might be committed a class of capital offer ces, of very wide and large without danger to the offender's life. On the extent. other hand, if to reach these possible cases, the whole class of offences to which they belong be subjected to pains of death, and no power of remitting this severity remain any where, the execution of the laws will become more sanguinary than the public compassion would endure, or than is necessary to the general security.

The prerogative of pardon is properly reserved to the chief magistrate. The power of suspending the laws is a privilege of too high a nature to be committed to many hands, or to those of any inferior officer in the state. The king also can best collect the advice by which his resolutions should be governed: and is at the same time removed at the greatest The law of England is constructed upon a distance from the influence of private motives. different and a better policy. By the number But let this power be deposited where it will, of statutes creating capital offences, it sweeps the exercise of it ought to be regarded, not as into the net every crime which, under any a favour to be yielded to solicitation, granted to possible circumstances, may merit the punish-friendship, or, least of all, to be made subserment of death: but when the execution of this vient to the conciliating or gratifying of polisentence comes to be deliberated upon, a small tical attachments, but as a judicial act; as a proportion of each class are singled out, the deliberation to be conducted with the same general character, or the peculiar aggravations, character of impartiality, with the same exact of whose crimes, render them fit examples of and diligent attention to the proper merits and public justice. By this expedient, few actually circumstances of the case, as that which the suffer death, whilst the dread and danger of judge upon the bench was expected to mainit hang over the crimes of many. The tend-tain and show in the trial of the prisoner's erness of the law cannot be taken advantage guilt. The questions, whether the prisoner of. The life of the subject is spared as far as be guilty, and whether, being guilty, he ought the necessity of restraint and intimidation per- to be executed, are equally questions of public mits; yet no one will adventure upon the com-justice. The adjudication of the latter ques mission of any enormous crime, from a know-tion is as much a function of magistracy, as the ledge that the laws have not provided for its trial of the former. The public welfare is inpunishment. The wisdom and humanity of terested in both. The conviction of an offenthis design furnish a just excuse for the multi- der should depend upon nothing but the proof plicity of capital offences, which the laws of of his guilt; nor the execution of the sentence England are accused of creating beyond those of other countries. The charge of cruelty is answered by observing, that these laws were never meant to be carried into indiscriminate execution; that the legislature, when it establishes its last and highest sanctions, trusts to the benignity of the crown to relax their severity as often as circumstances appear to palliate the offence, or even as often as those circumstances of aggravation are wanting which rendered this rigorous interposition necessary. Upon this plan, it is enough to vindicate the Aggravations, which ought to guide the malenity of the laws, that some instances are to gistrate in the selection of objects of condign be found in each class of capital crimes, which punishment, are principally these three,-rerequire the restraint of capital punishment, and petition, cruelty, combination. The first two, that this restraint could not be applied with- it is manifest, add to every reason upon which out subjecting the whole class to the same the justice or the necessity of rigorous measures condemnation. can be founded; and with respect to the last

upon any thing beside the quality and circumstances of his crime. It is necessary to the good order of society, and to the reputation and authority of government, that this be known and believed to be the case in each part of the proceeding. Which reflections show, that the admission of extrinsic or oblique considerations, in dispensing the power of pardon, is a crime, in the authors and advisers of such unmerited partiality, of the same nature with that of corruption in a judge.

There is however one species of crimes, the circumstance, it may be observed, that when making of which capital, can hardly, I think, thieves and robbers are once collected into be defended even upon the comprehensive gangs, their violence becomes more formidable, principle just now stated;-I mean that of the confederates more desperate, and the diffiprivately stealing from the person. As every culty of defending the public against their dedegree of force is excluded by the description predations much greater, than in the case of of the crime, it will be difficult to assign an ex-solitary adventurers. Which several consiample, where either the amount or circum-derations compose a distinction that is properly

adverted to, in deciding upon the fate of con victed malefactors.

Of frauds, or of injuries which are effected without force, the most noxious kinds are,— forgeries, counterfeiting or diminishing of the coin, and the stealing of letters in the course of their conveyance; inasmuch as these practices tend to deprive the public of accommoda. tions, which not only improve the conveniencies of social life, but are essential to the prosperity, and even the existence, of commerce. Of these crimes it may be said, that although they seem to affect property alone, the mischief

In crimes, however, which are perpetrated by a multitude, or by a gang, it is proper to separate, in the punishment, the ringleader from his followers, the principal from his accomplices, and even the person who struck the blow, broke the lock, or first entered the house, from those who joined him in the felony; not so much on account of any distinction in the guilt of the offenders, as for the sake of cast. ing an obstacle in the way of such confedera- of their operation does not terminate there. cies, by rendering it difficult for the confe- For let it be supposed, that the remissness or derates to settle who shall begin the attack, or lenity of the laws should, in any country, suffer to find a man amongst their number willing offences of this sort to grow into such a freto expose himself to greater danger than his quency, as to render the use of money, the cir associates. This is another instance in which culation of bills, or the public conveyance of the punishment which expediency directs, does letters, no longer safe or practicable; what not pursue the exact proportion of the crime. would follow, but that every species of trade Injuries effected by terror and violence, are and of activity must decline under these discouthose which it is the first and chief concern of ragements; the sources of subsistence fail, by legal government to repress; because their which the inhabitants of the country are sup extent is unlimited; because no private pre-ported; the country itself, where the intercaution can protect the subject against them; course of civil life was so endangered and debecause they endanger life and safety, as well fective, be deserted; and that, beside the disas property; and lastly, because they render tress and poverty which the loss of employment the condition of society wretched, by a sense would produce to the industrious and valuable of personal insecurity. These reasons do not part of the existing community, a rapid depoapply to frauds which circumspection may pre-pulation must take place, each generation be vent; which must wait for opportunity; which coming less numerous than the last; till solcan proceed only to certain limits; and by the tude and barrenness overspread the land; until apprehension of which, although the business a desolation similar to what obtains in many of life be incommoded, life itself is not made miserable. The appearance of this distinction has led some humane writers to express a wish, that capital punishments might be confined to crimes of violence.

countries of Asia, which were once the most civilised and frequented parts of the world, succeed in the place of crowded cities, of cultivated fields, of happy and well peopled regions?— When therefore we carry forwards our views In estimating the comparative malignancy to the more distant, but not less certain conseof crimes of violence, regard is to be had, not quences of these crimes, we perceive that, only to the proper and intended mischief of though no living creature be destroyed by them, the crime, but to the fright occasioned by the yet human life is diminished: that an offence, attack, to the general alarm excited by it in the particular consequence of which deprives others, and to the consequences which may only an individual of a small portion of his proattend future attempts of the same kind. perty, and which even in its general tendency Thus, in affixing the punishment of burglary, seems to do nothing more than obstruct the enor of breaking into dwelling-houses by night, joyment of certain public conveniencies, may we are to consider not only the peril to which nevertheless, by its ultimate effects, conclude the most valuable property is exposed by this in the laying waste of human existence. This crime, and which may be called the direct observation will enable those who regard the mischief of it, but the danger also of murder divine rule of "life for life, and blood for in case of resistance, or for the sake of prevent-blood," as the only authorised and justifiable ing discovery; and the universal dread with measure of capital punishment, to perceive, which the silent and defenceless hours of rest and sleep must be disturbed, were attempts of this sort to become frequent; and which dread alone, even without the mischief which is the object of it, is not only a public evil, but almost In the case of forgeries, there appears a subof all evils the most insupportable. These cir- stantial difference between the forging of bills cumstances place a difference between the of exchange, or of securities which are circubreaking into a dwelling-house by day, and by lated, and of which the circulation and curnight; which difference obtains in the punish-rency are found to serve and facilitate valuable ment of the offence by the law of Moses, and is probably to be found in the judicial codes of most countries, from the earliest ages to the

present

with respect to the effects and quality of the actions, a greater resemblance than they suppose to exist between certain atrocious frauds, and those crimes which attack personal safety.

purposes of commerce; and the forging of bonds, leases, mortgages, or of instruments which are not commonly transferred from one hand to another; because in the former case, credit is

each man's time, employment, and means of subsistence; nor securities to be required when these accounts appear unsatisfactory or du bious; nor men to be apprehended upon the mere suggestion of idleness or vagrancy; nor to be confined to certain districts; nor the inhabitants of each district to be made responsible for one another's behaviour; nor passports to be exacted from all persons entering or leav

necessarily given to the signature, and with- | description of the strangers or inmates whom out that credit the negotiation of such proper- they entertain; nor that an account be de ty could not be carried on, nor the public uti-manded, at the pleasure of the magistrate, of lity, sought from it, be attained in the other case, all possibility of deceit might be precluded, by a direct communication between the parties, or by due care in the choice of their agents, with little interruption to business, and without destroying, or much encumbering, the uses for which these instruments are calculated. This distinction I apprehend to be not only real, but precise enough to afford a line of division between forgeries, which as the lawing the kingdom: least of all will they tolernow stands, are almost universally capital, and punished with undistinguishing severity.

Perjury is another crime, of the same class and magnitude And, when we consider what reliance is necessarily placed upon oaths; that all judicial decisions proceed upon testimony; that consequently there is not a right that a man possesses, of which false witnesses may not deprive him; that reputation, property, and life itself, lie open to the attempts of perjury; that it may often be committed without a possibility of contradiction or discovery; that the success and prevalency of this vice tend to introduce the most grievous and fatal injustice into the administration of human affairs, or such a distrust of testimony as must create universal embarrassment and confusion : -when we reflect upon these mischiefs, we shall be brought, probably, to agree with the opinion of those who contend that perjury, in its punishment, especially that which is attempted in solemn evidence, and in the face of a court of justice, should be placed upon a level with the most flagitious frauds.

ate the appearance of an armed force, or of military law; or suffer the streets and public roads to be guarded and patrolled by soldiers; or lastly, intrust the police with such discretionary powers, as may make sure of the guilty, however they involve the innocent. These expedients, although arbitrary and rigorous, are many of them effectual: and in proportion as they render the commission or concealment of crimes more difficult, they subtract from the necessity of severe punishment.-Great cities multiply crimes, by presenting easier opportu. nities, and more incentives to libertinism, which in low life is commonly the introductory stage to other enormities; by collecting thieves and robbers into the same neighbourhood, which enables them to form communications and con federacies, that increase their art and courage as well as strength and wickedness; but principally by the refuge they afford to villany, in the means of concealment, and of subsisting in secrecy, which crowded towns supply to men of every description. These temptations and facilities can only be counteracted by adding to the number of capital punishments. But a third cause, which increases the frequency of capital executions, in England, is, a defect of the laws, in not being provided with any other pu

The obtaining of money by secret threats, whether we regard the difficulty with which the crime is traced out, the odious imputations to which it may lead, or the profligate conspiracies that are sometimes formed to carry it in-nishment than that of death, sufficiently territo execution, deserves to be reckoned amongst the worst species of robbery.

ble to keep offenders in awe. Transportation, which is the sentence second in the order of The frequency of capital executions in this severity, appears to me to answer the purpose country owes its necessity to three causes; of example very imperfectly: not only because much liberty, great cities, and the want of a exile is in reality a slight punishment to those punishment short of death, possessing a suffi- who have neither property, nor friends, nor cient degree of terror. And if the taking away reputation, nor regular means of subsistence, of the life of malefactors be more rare in other at home; and because their situation becomes countries than in ours, the reason will be found little worse by their crime, than it was before in some difference in these articles. The li- they committed it; but because the punishment, berties of a free people, and still more the jea-whatever it be, is unobserved and unknown. lousy with which these liberties are watched, A transported convict may suffer under his senand by which they are preserved, permit not tence, but his sufferings are removed from the those precautions and restraints, that inspec- view of his countrymen: his misery is unseen; tion, scrutiny, and control, which are exercis- his condition strikes no terror into the minds ed with success in arbitrary governments. For of those for whose warning and admonition it example, neither the spirit of the laws, nor of was intended. This chasm in the scale of puthe people, will suffer the detention or confine-nishment produces also two farther imperfecment of suspected persons, without proofs of tions in the administration of penal justice ;their guilt, which it is often impossible to ob- the first is, that the same punishment is extend tain; nor will they allow that masters of fa-ed to crimes of very different character and mamilies be obliged to record and render up alignancy: the second, that punishments separ