regard to the first object is compatible with many modifications of punishment, in order more effectually to attain the second. If there are two measures, of which both tend alike to reformation, and one tends most to operate as example, that one should unquestionably be preferred.

power that may counteract the power of future temptation. We should feel towards these mentally diseased, as we feel towards the physical sufferer-compassion; and the great object should be to cure the disease. No doubt, in endeavouring this object, severe remedies must often be employed. It is just what we should expect ; and the remedies will probably be severe in proportion to the 7. There is a third object which, though inveteracy and malignity of the complaint. subordinate to the others, might perhaps But still the end should never be forgotten, still obtain greater notice from the legislator and I think a just estimate of our moral than it is wont to do Restitution or Comobligations will lead us to regard the attain-pensation.1 Since what are called criminal ment of that end as paramount to every other.

4. There is one great practical advantage in directing the attention especially to this moral cure, which is this, that if it be successful, it prevents the offender from offending again. It is well known that the proportion of those who, having once suffered the stated punishment, again transgress the laws and are again convicted, is great. But to whatever extent reformation was attained, this unhappy result would be prevented.

5. The second object of punishment, that of example, appears to be recognised as right by Christianity, when it says that the magistrate is a "terror" to bad men; and when it admonishes such to be "afraid" of his power. There can be no reason for speaking of punishment as a terror, unless it were right to adopt such punishments as would deter. In the private discipline of the Church the same idea is kept in view: "Them that sin rebuke before all, that others also may fear." 1 The parallel of physical disease may also still hold. The offender is a member of the social body; and the physician who endeavours to remove a local disease, always acts with a reference to the health of the

system.

6. In stating reformation as the first object, we also conclude, that if, in any case, the attainment of reformation and the exhibition of example should be found to be incompatible, the former is to be preferred. I say if; for it is by no means certain that such cases will ever arise. The measures which are necessary to reformation must operate as example; and in general, since the reformation of the more hardened offenders is not to be expected, except by severe measures, the influence of terror in endeavouring reformation will increase with the malignity of the crime. This is just what we need, and what the penal legislator is so solicitous to secure. The point for the exercise of wisdom is, to attain the second object in attaining the first. A primary

11 Tim. v. 20.

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.

8. I do not imagine that in the present state of penal law, or of the administration of justice, a general regard to compensation 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 would 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.

9. 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

1 "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 recognised in the Mosaic law, in which compensation to the suffering party is expressly required.

a crime has been committed it cannot be re- | appears no sufficient reason why the parallel called ; that it is a "past and irrevocable system should not be adopted of increasing action," and that to inflict pain upon the the original sentence if his conduct continue criminal because he has committed it, "is one vicious. There is no breach of reason or of of the wildest conceptions of untutored bar-justice in this. For the reasonable object barism." No one perhaps would affirm that, of punishment is to attain certain ends, and in strictness, such a motive to punishment is if, by the original sentence, it is found that right; but how, when an offence is committed, these ends are not attained, reason appears can you separate the objects of punishment to dictate that stronger motives should be so as not practically to punish because the employed. It cannot surely be less reasonman has offended? If you regulate the able to add to a culprit's penalty if his conpunishment by its legitimate objects, you duct be bad, than to deduct from it if it be punish because the offender needs it; and good. For a sentence should not be conas all offenders do need it, you punish all, sidered as a propitiation of the law, nor which amounts in practice to nearly the same when it is inflicted should it be considered, thing as punishing because they have com- as of necessity, that all is done. The senmitted a crime. However, as an abstract tence which the law pronounces is a general principle, there might be little occasion to rule-good perhaps as a general rule, but dispute about it; but when it is made a sometimes inadequate to its end. And the foundation for such doctrine as the following, utility of retaining the power of adding to it is needful to recall the supreme authority a penalty is the same in kind, and probably of the Moral Law: ""We are bound, under greater in degree, than the power of diminishcertain urgent circumstances, to deprive the ing it. In one case the culprit is influenced offender of the liberty he has abused. by hope, and in the other by fear. Fear is Further than this, no circumstance can the more powerful agent upon some men's authorise us. The infliction of further evil, minds, and hope upon others. And as to when his power to injure is removed, is the the justice of such an institution, it appears wild and unauthorised dictate of vengeance easily to be vindicated; for what is the and rage." This is affirmative; and in turn standard of justice? The sentence of the I would affirm that it is the sober and law? No; for if it were, it would be unjust authorised dictate of justice and goodwill. to abate of it as well as to add. Is it the But indeed why may we even restrain him? original crime of the offender? No; for Obviously for the sake of others; and for if it were, the same crime, by whatever the sake of others we may also do more. variety of conduct it was afterwards followed, Besides, this philosophy leaves the offender's must always receive an equal penalty. The reformation out of the question. If he is so standard of justice is to be estimated by the wicked that you are obliged to confine him ends for which punishments are inflicted. lest he should commit violence again, he is Now, although it would be too much to so wicked that you are obliged to confine him affirm that any penalty, or duration of penalty, for his own good. And, in reality, the writer would be just until these ends were attained, himself had just before virtually disproved yet surely it is not unjust to aim at their' his own position. Whatever gentleness," attainment by some additions to an original he says, "the intellectual physician may dis- penalty when they cannot be attained withplay, it is not to be believed that men can part with rooted habits of injustice and vice without the sensation of considerable pain. 1 But, to occasion this pain in order to make them part with vicious habits, is to do something" further" than to take away liberty.

10. 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

1 Godwin: Enq. Pol. Just., v. ii. pp. 748, 751.

out.

CHAPTER XIII.

Punishment of Death.

66

that the same notion might be attached to any other punishment, and that thus that other would become abortive; but there is little reason to expect this, at least in the same degree. The notion is now connected expressly with hanging, and it is not probable that the same notion would ever be transferred with equal power to another penalty. Where then is the overwhelming evidence of utility, which alone, even in the estimate of expediency, can justify the punishment of death? It cannot be adduced; it does not exist.

first degree. Where, then, is our pretension | to be hanged they are to be hanged, and to a justification of our own practice? It nothing can prevent it.'"1 It may be said is a satisfaction that so many facts and arguments are before the public which show the inefficacy of the punishment of death in this country; and this is one reason why they are not introduced here. "There are no practical despisers of death like those who touch, and taste, and handle death daily, by daily committing capital offences. They make a jest of death in all its forms; and all its terrors are in their mouths a scorn." 1 Profligate criminals, such as common thieves and highwaymen," "have always been accustomed to look upon the gibbet as a lot very likely to fall to them. When it does fall to them, therefore, they consider themselves only as not quite so lucky as some of their companions, and submit to their fortune without any other uneasiness than what may arise from the fear of death—a fear which even, by such worthless wretches, we frequently see can be so easily and so very completely conquered." A man some time ago was executed for uttering forged bank-notes, and the body was delivered to his friends. What was the effect of the example upon them? Why, with the corpse lying on a bed before them, they were themselves seized in the act of again uttering forged bank-notes. The testimony upon a subject like this, of a person who has had probably greater and better opportunities of ascertaining the practical efficiency of punishments than any other individual in Europe, is of great importance. "Capital convicts," says Elizabeth Fry, "pacify their conscience with the dangerous and most fallacious notion, that the violent death which awaits them will serve as a full atonement for all their sins." It is their passport to felicity-the purchase-money of heaven! Of this deplorable notion the effect is doubly bad. First, it makes them comparatively little afraid of death, because they necessarily regard it as so much less an evil; and, secondly, it encourages them to go on in the commission of crimes, because they imagine that the number or enormity of them, however great, will not preclude them from admission into heaven. Of both these mischiefs, the punishment of Ideath is the immediate source. Substitute another punishment, and they will not think that that is an atonement for their sins," and will not receive their present encouragement to continue their crimes. But with respect to example, this unexceptional authority speaks in decided language. "The terror of example is very generally rendered abortive by the predestinarian notion, vulgarly prevalent among thieves, that if they are

1 Irving's Orations.

2 Observations on the Visiting, &c., of Female Prisoners, P. 73.

|

18. But if capital punishments do little good, they do much harm. "The frequent public destruction of life has a fearfully hardening effect upon those whom it is intended to intimidate. While it excites in them the spirit of revenge, it seldom fails to lower their estimate of the life of man, and renders them less afraid of taking it away in their turn by acts of personal violence." 2 This is just what a consideration of the principles of the human mind would teach us to expect. To familiarise men with the destruction of life, is to teach them not to abhor that destruction. It is the legitimate process of the mind in other things. He who blushes and trembles the first time he utters a lie, learns by repetition to do it with callous indifference. Now you execute a man in order to do good by the spectacle-while the practical consequence, it appears, is, that bad men turn away from the spectacle more prepared to commit violence than before. It will be said that this effect is produced only upon those who are already profligate, and that a salutary example is held out to the public. But the answer is at hand-The public do not usually begin with capital crimes. These are committed after the person has become depraved —that is, after he has arrived at that state in which an execution will harden rather than deter him. We "lower their estimate of the life of man." It cannot be doubted. It is the inevitable tendency of executions. There is much of justice in an observation of Beccaria's. "Is it not absurd that the laws which detect and punish homicide should, in order to prevent murder, publicly commit murder themselves?"3 By the procedures of a court, we virtually and perhaps literally expatiate upon the sacredness of human life, upon the dreadful guilt of taking it away—and then forthwith take it away ourselves! It is no subject of wonder that this "lowers the estimate of the life of man."

1 Observations on the Visiting, &c., of Female Prisoners, P. 73 Ibid.

3 Essay on Capital Punishments, c. 28.