these, it is the only safe and the only philosophical course, to adopt the advice of Lord Bacon, not to "mix divine things with human," but to "give unto faith that which unto faith belongeth."

CHAPTER XII.

ON CRIMINAL LEGISLATION.

I SHALL NOW make a few remarks on Mr Combe's system of criminal discipline, in regard to which he seems to me to have erred as much as in any other part of his speculations. And here I must confess myself utterly unable to imagine of what stuff Mr Combe's feelings of justice are composed, when he can see the most perfect justice in the case of a child, who has inadvertently swallowed arsenic, perishing in the most excruciating tortures, and at the same time denies the justice of inflicting retributive punishment on an atrocious criminal. Mr Combe's views upon this subject are such as to confound utterly all our notions of right and wrong, justice and injustice. According to him, the greatest criminals are to be regarded as the least. Crime, with him, is merely a misfortune, and criminals to be looked upon as objects of compassion, and only as objects of compassion. It follows, that those who commit the greatest crimes, being the most unfortunate, are entitled to our compassion in the greatest degree. Accordingly, Mr Combe seems to regard all criminals whatsoever, and particularly those who are guilty of the most atrocious offences, with a tender, and almost a fatherly affection, and he reserves his whole indignation for mere errors in judgment; for our divines, who, in place of teaching Phrenology from the pulpit, prefer preaching

the Gospel; and for all those who neglect, or disobey, or speak lightly of, the natural laws. The conclusion of the whole is this, that there is to be no punishment inflicted, as punishment, in the case of any crime whatsoever; and that all we are to do, even in the worst cases, is to take up the offenders, put them into penitentiaries, that is to say, comfortable houses, where they will be sheltered, fed, and preserved in safety, and properly instructed in their duty, all at the public expense, and then sent abroad again into society to practise the lessons they have so learned. "Why this is hire and salary," and not punishment. Many may be tempted to commit crimes, if this is to be the mode of dealing with criminals.

The plan, I admit, might perhaps be tried by way of experiment, if it were at all practicable; and perhaps in some other country, or in some other society than that of Britain, or in some other planet than this earth, it may be practicable. But in this country, at the present time, taking the people as they are, with their present development, and in the present state of improvement of their faculties, it is altogether impossible that such a system can be executed with any hope of tolerable success; and if he would only apply his own principles consistently throughout, there is no one that should be more fully satisfied than Mr Combe that this is the case.

Mr Combe observes, "The leading fact which arrests our attention in this inquiry, is, that every crime proceeds from an abuse of some faculty or other; and the question immediately arises, Whence originates the tendency to abuse? Phrenology enables us to answer, From three sources; first, From particular organs being too large and spontaneously active; secondly, From great excitement produced by external causes; or, thirdly, From ignorance of what are uses or what are abuses of the faculties."

All these causes, Mr Combe states, subsist independently of the will of the offender. This is perhaps not entirely true of any of these causes. It is not necessary to resort to Phrenology, to prove that a man has not the choice of his own original disposition and character. But if the organ of any particular propensity is too powerful, it may be asked, has it not been indulged and cherished in a culpable manner, before it came into this state of predominance and over activity? Again, the circumstances of external excitement which lead to crime, are generally of our own seeking. If evil example is alleged, has not evil company been sought rather than avoided? Had not the individual at first voluntarily chosen such society, he would not have been exposed to the contagion of their evil communications. If intoxicating liquors supply the stimulus, has not that stimulus been sought to a vicious excess before it excited to crime? If ignorance of what is right and just be alleged, have not the opportunities of knowledge, which are in this country held out and offered to all, been first despised and neglected? Has not the boy played truant, and the youth stayed from church? I enter not here into any subtle disquisitions about free-will; it is enough to say, that the above are as much dependent on volition and choice as any other circumstances in our condition; and that the voluntary nature of such acts must be admitted, unless we deny the existence of free agency in any case whatever. All writers on this subject, whatever side they may have taken in the question about liberty and necessity, agree in this, that whatever be the nature of the necessity to which our wills and actions are subjected, it is not such as to take away our responsibility, or to render us unaccountable for our misdeeds, either in the eye of God or man. Cudworth maintains, that we are so far the principals and originators of our own

thoughts and actions, as to be accountable for them, and as justly to be punishable for such as are wrong. Butler has written a chapter, to shew, that this is confirmed by the whole analogy of nature. Edwards, the great champion of necessity, holds the very same doctrine. So does Locke. Mr Combe himself, though he virtually denies the justice of punishment, admits, in the fullest manner, the necessity of stopping the career of the criminal, and, by the most effectual means, of putting an end to crime. He considers the system of penitentiaries to be the most effectual means, as well as the most agreeable to benevolence and the other higher sentiments; and we only differ from him on these points. Let us consider them a little more minutely.

Mr Combe is fond of considering the mental faculties and feelings separately, and of representing them as in a state of perpetual war and opposition, instead of taking the mind as a whole, made up of consistent and harmonious parts. He represents the present system of curbing crime by punishment, as originating entirely in the propensities. "The latter," he says, "blindly inflict animal resentment, without the slightest regard to the cause which led to the crime, or the consequences of the punishment. They seize the aggressor, and worry, bite, or strangle him; and there they begin and terminate their operations.

"The moral and intellectual faculties, on the other hand, embrace even the criminal himself within the range of their sympathies. Benevolence desires to render him virtuous, and thereafter happy, as well as to rescue his victim. Veneration desires that he should be treated as a man; and Conscientiousness declares, that it cannot, with satisfaction, acquiesce in any administration towards him, that does not tend to remove the motives of his misconduct, and to prevent their recurrence," &c.*

* Constitution of Man, p. 75, 2d col.

I shall consider both these points in their order. First, I conceive Mr Combe to be wrong in supposing our present system of curbing crime by punishment, as entirely suggested by the propensities, without sentiment or intellect. I shall go back to the first establishment of our criminal laws, and suppose a legislator, like Alfred, promulgating, for the first time, his code of criminal legislation. He finds himself surrounded by a savage race, in whom the propensities are wofully predominant, men who would rob, murder, ravish, burn, and destroy, with little or no scruple, whenever it suited their inclination, or whenever opportunity occurred. He would willingly, if he could, have them all restrained from crime, and instructed in their duty,

but his intellect shews him that this is impossible. He has difficulty in procuring instruction for himself, or for his children — how shall he provide these for his whole subjects? External restraint is out of the question, for the number of the well-disposed among his subjects would be unable to do the duty of jailers to those who are otherwise. What then can he do? Intellect informs him that Fear, and the Love of Approbation, are two of the strongest feelings of the mind, and that many who are deficient in Conscientiousness and Benevolence may be addressed through these feelings. He therefore promulgates a law, that whoever wilfully and deliberately puts another man to death, or robs him by force on the highway, or sets fire to his house, or violates the chastity of his wife or daughter, shall be hanged upon a gibbet until he be dead. In promulgating this law, there is not, and cannot be, the slightest indulgence of the propensity of Destructiveness, merely as such. It is a strong measure, to be sure, and in order to put it in force, will require a considerable endowment of that species of energetic power which has received the name of Destructiveness. But there is not, and