human beings. In his eighty-fourth year, his attention was at every one's question, his information at every one's command." *

It is more than intimated in this passage, that the steam-engine was still to receive new developements and new applications; and in this, the anticipations of this great author have not been disappointed. In the most improved cotton machinery, we see the story of Briareus with his hundred hands more than realized; on the bosom of the ocean, we sail in floating palaces, borne onward as if by enchantment; on the land, we fly, as it were, on the wings of the wind. These vast inventions and improvements in labor-saving machinery, with others which my limits do not permit me to mention, have contributed surprisingly to the physical comfort of the inferior classes of society, and have given a corresponding impulse to their intellectual, moral, and social improvement.

2. Happiness may also be advanced by the reformation of our criminal codes, and by the codification of our law generally, so far as the nature of the case and circumstances permit.

Few subjects are more important, than penal law and the administration of penal justice; few are beset with greater difficulties, both theoretical and practical; and few, if any, in modern times, have called forth the talents of more able men. Montesquieu, Beccaria, Voltaire, Dr. Priestley, Lord Kames, Dr. Paley, and, more lately, Mr. Bentham, Sir Samuel Romilly, Lord Brougham, and Mr. Livingston, have devoted themselves to its elucidation. Their writings abound with admirable views and philosophical analyses of the whole subject; still but few of them comparatively have yet found their way into practical legislation. Reformation, however, in this respect, has proceeded much further in this country than in Great Britain; though it must be admitted that we have advanced with tardy steps. The English criminal law has been long and loudly complained of, for its unreasonable severity; so much so, that juries have habitually refused to lend themselves to the execution of its penalties, and, in order to turn them aside from the criminal, have taken upon themselves to render a verdict inconsistent both with law and

*

Quoted in Brande's Manual of Chemistry, Vol. I. p. 125. London. 1821.

evidence. This practice, however unjustifiable in itself, finds much palliation in the harshness of the law and its reckless disregard of human life, and shows how feeble the strongest law is in comparison with public opinion. The English penal law has lately been somewhat meliorated, but still demands vastly more emendation. The Louisiana Penal Code, prepared by the late Mr. Livingston, is a noble monument of his genius, industry, and enlightened views, and confers honor on the age and country which produced it.

One class of difficulties, in the way of penal legislation, consists in prejudices in favor of ancient usage and ancient institutions, and against all innovation of whatever kind; as if ancient times were not, as Lord Bacon remarks, by many ages, younger and less experienced than the times in which we live. Difficulties of another class spring from the character of criminals themselves, and from want of a definite acquaintance with the effects of principles and systems which have been tested by trial, and therefore want of adequate grounds of comparing them one with another. An enlightened legislator, too, will find a difficulty in determining what degree of indulgence is due to those who have generally been unfortunate before they became criminal, and to human nature itself, however low it may have fallen in the person of the criminal. Besides, persons innocent of any considerable crime cannot fully understand the feelings and state of mind of a criminal, and, therefore, must have great difficulty in adapting their legislation to the motives and other circumstances, which influence his conduct.

Lord Kames has taken the ground, that punishment ought to be inflicted on the broad principle of retributive justice, that the natural indignation consequent on the commission of crimes, ought to be the measure of the punishment; and, in this position, he is earnestly sustained by his biographer, Alexander Fraser Tytler (Lord Woodhouselee), in an elaborate argument.†

Most writers, however, take the ground, that "the object of

* See the Edinburgh Review, Vol. XIX., pp. 405, 406.

† See Life of Lord Kames by the above-named biographer, Vol. I. pp. 302-306; Vol. III. pp. 110 - 153.

all punishment is, the prevention of the offence in future ;" yet even this is but a narrow and very partial view of the object of punishment. Is the criminal himself, as a human being, entitled to no regard? Punishment ought to be invariable, that is, whenever and upon whomsoever inflicted, it ought, under the same circumstances to be the same, or always equal to itself; it ought to be capable of comparison with other punishments, analogous to the crime; * salutary in the example which it furnishes; economical; remissible. It ought to restrain the convict from doing harm, conduce to his reformation, pay its own expenses, and, if possible, yield a profit, in the ordinary sense of the term; be simple in its description, and so far popular as to shock none of the established feelings and prejudices of the community. Perhaps even this enumeration of the qualities, which punishment ought to possess, is incomplete. It is well to observe, too, that these qualities are not enumerated as all requisite to meet in any one mode of punishment, but only as the circumstances which ought to be kept in view when a mode of punishing is to be chosen. It is almost constantly necessary for the lawgiver to make his way amidst opposite difficulties, by making compromises, and yielding certain advantages, in order to secure others of a higher nature, but incompatible with those which he sacrifices.

So far as punishments are to be adjusted to the crimes intended to be prevented, we may trace the limits within which they

*It is very certain, that a mild punishment is sometimes more effectual to the end in view than a severe one; and to this the analogy (as the term is here used) of the punishment to the offence seems considerably to contribute. This may be illustrated by citing an instance. It is customary in the British navy to give the men permission to go on shore for twenty-four hours at a time, and, if they exceed the allowance, to flog them. The fear of this punishment occasions numerous desertions, as may easily be supposed; and, in order to prevent this evil, many captains refuse to grant permissions at all, however long their men may have been kept on board, or at sea. A certain officer fell upon a better remedy, by merely changing the punishment of the lash into one of those denominated analogical in Mr Bentham's theory of punishments. If any man exceeded the limited time of twenty-four hours, he lost his next permission to go on shore; if he exceeded forty-eight hours, he lost two turns, and so forth. The experiment succeeded completely; the offence of remaining too long on shore did not become more frequent after the mitigation of the punishment, and desertions entirely ceased. Edinburgh Review, Vol. XXII. p. 9; Kames's Elements of Criticism, Vol. I. pp. 237 – 240.

ought to be confined, upon the supposition that the lawgiver uses them as counteracting motives to determine men against yielding to their criminal propensities. Referring constantly to the subject of his operations, to wit, the mind of a person under temptation to commit the offence, he must apportion the punishment so as to counteract the temptation. To maintain, that men do not calculate when they commit crime, is quite erroneous, taken as a general position. It would be much nearer the truth to say, that no man, however inconsiderate, takes a step of such importance as the commission of a criminal act, without some deliberation or reasoning. At all events, one consideration is sufficient to justify an apportionment of punishments on this principle, even in cases where the offence flows from the most vehement passions. The knowledge of the punishment forms certain habits of restraint, by operating upon the mind in its cooler moments, when the incentives to violent excesses are at a distance; and a general or perpetual bias, thus given, will, in a great majority of cases, have its effect at the critical moment of incitement.

Governed by these views, we may arrive at several conclusions fundamental in the theory of punishments and of the utmost value in penal legislation. 1. The evil of the punishment must exceed the advantage arising from the crime; and under this head is comprehended the position, that, generally speaking, the stronger the temptation to commit any crime, the more severe ought to be the punishment; subject, however, to exceptions in extreme cases, which may easily be imagined. 2. Where the criminal act is such as to furnish clear proof of a habit or practice, the punishment should be in proportion, not to the gain derived from a single offence, but to the probable amount of profit reaped from a course of such conduct. 3. An addition must be made to the punishment, in order to compensate its want of certainty and proximity. Whatever punishment the law denounces, ought to be made as certain as the imperfections of police and jurisprudence will permit. And it seems a maxim, now universally agreed upon, that the certainty of the punishment is much more important in preventing crimes than its severity. "If it were possible," says Sir Samuel Romilly, "that punishment, as the consequence of guilt, could be reduced to an abso

lute certainty, a very slight penalty would be sufficient to prevent almost every species of crime, except those which arise from sudden gusts of ungovernable passion. If the restoration of the property stolen, and only a few weeks, or even a few days, imprisonment were the unavoidable consequence of theft, no theft would ever be committed.”* 4. In cases where there is a temptation to commit different crimes, a more severe punishment should of course be denounced against the greater crime. One of the strongest arguments against multiplying the more severe punishments is deducible as a consequence from this proposition. 5. The more pernicious any crime is, the more safely may a severe punishment be assigned for the sake of preventing it; a rule, the justness of which, however self-evident, has been almost uniformly neglected by legislators. 6. The nominal amount of punishment, for the same crime, must often be varied at the discretion of the court, according to the circumstances of the delinquent, in order to inflict the same real amount of suffering.t

Neither the law of England, nor of this country, regards the debtor as a criminal, nor ought he to be so regarded, where his debts are the result of misfortune and not of misconduct; still such is the position in which he stands before society, when imprisoned for debt, that his case may, not only without violence, but on the ground of a close analogy, be brought within the subject now under discussion. The most approved arguments, by which this practice is usually justified, are, that it is the only effectual means of coercing payment; that provisions of law may be devised, by which, while the fraudulent debtor may be secured and payment coerced, the honest but unfortunate debtor may be relieved without much delay; and, finally, that the rights and just claims of the creditor, as well as the complaints and clamors of the debtor, ought to be listened to, respected, and maintained. These considerations are undeniably entitled to much weight.

* Observations on the Criminal Law of England, quoted in the Edinburgh Review, Vol. XIX. P. 403.

+ See the Edinburgh Review, Vol. XXII. p. 7.