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cannot be, the least anger against any individual. The law is not directed against any individual, but intended for the benevolent purpose of preventing evil, and with the hope that it will be effectual: and in a great many cases, there is no doubt that it must be effectual. Whenever there is a hesitation or a struggle between the lower propensities and the better feelings, the first movements towards crime may and must be checked by the consideration that this act-which is only thought ofwill probably lead to a shameful and ignominious death. There is, therefore, kindness in the very severity of the law, which is such as to keep the greater part of the community even from thinking of such crimes. But in some cases, the law will be violated; and, in this event, what is the lawgiver to do? Mr Combe says, Benevolence desires that the culprit may live and be reformed. But a higher and more enlightened benevolence pleads for society, and says, that if the law be not executed, it will thenceforth be despised; and if this criminal escapes with life, not only may he afterwards commit other crimes, but others, whose evil thoughts are yet in embryo, expecting the like impunity, will indulge inclinations which would otherwise be suppressed, and commit offences which a more strict and vigorous administration would afford the best means of preventing. Benevolence itself, when enlightened by these considerations, is more swayed by the good of the community, than the good of one only. Conscientiousness sees it to be just, that he who has infringed the law, should suffer by the law; seeing that, but for this infringement, he would have enjoyed the benefit of that security which this very law was instituted to afford. The duty of the magistrate to preserve the public peace, is paramount to his own individual feelings, even though he should think that there was a hardship in the case of
the offender. Firmness, enlightened by intellect, sees that a law that is not executed is worse than no law at all; and therefore, it rejects all solicitations of mercy, represses all useless feelings towards the unhappy culprit, and sternly proceeds to the execution of that, without which all laws must be nothing more than empty threats. And he does so without an atom of that merely animal feeling of rage which Mr Combe thinks the only one which dictates the punishment.
With regard to the effect of capital punishments upon the spectators, I utterly deny Mr Combe's position, that it merely addresses itself to the propensities. I have sometimes witnessed executions, and I never observed, even in the lowest of the mob, any thing like gratification of the feeling of Destructiveness on such occasions, or any thing like a love of bloodshed for its own sake. On the contrary, the feelings generally excited, seem to be those of deep compassion. Towards a person in such unhappy circumstances, all anger is completely suppressed. Intellect sees that his punishment was not decreed to gratify Destructiveness, but to satisfy the law
-to prevent the law becoming of no effect-to be a beacon and a warning to those who might be inclined to do the like. Justice and Firmness are alike satisfied that this should be the case; and Benevolence, enlightened by intellect, sees that mercy to the guilty would be cruelty and injustice to the innocent. "Judex damnatur cum nocens absolvitur."
It thus appears, that, both in the case of the legislator who frames the law, the judge who condemns, and the spectator who witnesses its execution, the sentiments and intellect are principally, if not entirely, concerned in the matter, and the propensities not at all; or if the latter have any share, it is merely in enabling them to give effect to what the former see to be just, benevolent, and necessary.
Now, if this was the case in the ruder states of society, is it less the case now? For whom are such laws enacted? Not for the good, the well-constituted, or the welleducated. These do not require a law of this kind to prevent them from committing such crimes. It is intended to restrain those whose lower propensities are too powerful and active, and whose intellect and higher sentiments are not sufficiently strong, or sufficiently educated. In short, it is intended for those who still remain in the rude uncivilized savage state, as the generality of the people were in the age of Alfred. For them, such laws are as necessary now as they were then; and the unfor
ate prevalence of such crimes shews, that this class of society is still only too numerous.
But Mr Combe says here, Why do you allow people to commit crimes, and punish them afterwards? would it not be better to put them at once under such restraint as to prevent all crimes from being committed? I think upon this point Mr Combe will be best answered by Mr Combe. In page 22d of the "Constitution of Man,” I find the following passage, which appears to me so applicable that I shall make no apology for quoting it entire. "The problem is solved by the principle, that happiness consists in the activity of our faculties, and that the arrangement of punishment after the offence, is far more conducive to activity than the opposite. For example, if we desired to enjoy the highest gratification in exploring a new country, replete with the most exquisite beauties of scenery, and the most captivating natural productions; and if we found in our path, precipices that gratified ideality in the highest degree, but which endangered life, when, neglecting the law of gravitation, we advanced so near as to fall over them; whether would it be more bountiful in Providence to send an invisible attendant with us, who, whenever we are about to approach the
brink, should interpose a barrier, and fairly cut short our advance, without requiring us to bestow one thought upon the subject, and without our knowing when to expect it, and when not; or to leave all open, but to confer on us, as he has done, eyes fitted to see the precipice, faculties to comprehend the law of gravitation, and Cautiousness to make us fear the infringement of it, and then to leave us to enjoy the scene in perfect safety, if we used these powers, but to fall over and suffer pain or death, if we neglected to exercise them? It is obvious that the latter arrangement would give far more scope to our various powers; and if active faculties are the sources of pleasure, as will be shewn in the next chapter, then it would contribute more to our enjoyment than the other. Now, THE LAW punishing after the fact is analogous, in the moral world, to this arrangement in the physical. If Intellect, Benevolence, Veneration, and Conscientiousness, do their parts, they will give intimations of disapprobation before commission of offences, just as Cautiousness will give intimations of danger at sight of the cliff; but if these are disregarded, and we fall over the moral precipice, the punishment decreed by the law follows, just as pain is the chastisement for tumbling over the physical brink. The object of both institutions is to permit and encourage the most vigorous and unrestrained exercise of our faculties, in accordance with the physical, moral, and intellectual laws of nature, and to punish us only when we transgress these limits.”
This is all so good that I positively can add nothing to it. It appears to me to be irrefragable and unanswerable, and indeed to be much more applicable to the case of human criminal legislation than to the subject to which it was originally applied. I do not see how it is possible for Mr Combe to evade the force of his own arguments. What is there in our criminal law, even
that part of it to which Mr Combe has the strongest objections, namely, capital punishments,- that is different in principle from this procedure of the Creator in the physical arrangements here referred to? In fact, the principle is precisely the same-its application the its necessary and unavoidable effect the same. It is more benevolent that men should be allowed to commit crimes, and be afterwards punished for doing so, even though that punishment should be death, than that they should be deprived of their personal liberty by being shut up in penitentiaries. The former mode affords much greater scope than the latter for the exercise of all the human faculties, and is therefore more conducive, upon the whole, to human happiness. On his own principles, the only objection Mr Combe can state to our present system is, not that it is too severe and indiscriminating, but that it is not severe and indiscriminating enough; for, if it were sufficiently so to deprive the guilty of all chance of escape, it is clear that it would then be more assimilated to the Creator's physical arrangements, though it is not certain even then if it would have the effect to prevent all infringements against its provisions.
Much more might be stated on the subject of criminal legislation, did time and space permit to institute a comparison between Mr Combe's proposed penitentiaries and our present method of ridding the country of disorderly characters by transportation. I think it may be distinctly demonstrated, that the latter is by far the most beneficial in its effects, both to the country, the culprits themselves, their posterity, and the general fortunes of the world. It is more consistent with personal liberty than the penitentiary system, and, therefore, more benevolent to the criminal, as permitting the fuller exercise of his faculties, upon which, as Mr Combe states, happiness mainly depends.