The National Register. — London, England, 1819-02-28 00:00:00

' 4 i~io/~ 4 -.0:16 No. 578.—V0t. XII. POLITICAL DISQUISITION. PROPOIED IMP2OVEMENTS IN CaIMINAL LAW. IN the course of the last century, a very general sen satioa was created throughout Europe against the se verity and injustice of its criminal law In exciting tLis feeling, A/macula:els and Voltaire led the way with distinguished ability and success ; but it was in a entail State and utalet a despotic Government, that this subject was opened to its full extent, in the celebratel Work of the Marquis Becacia. By these writings not . only a goat -change of opinion, but great improvements iu criminal legislation, were effected iu many counties of Europe. The use of torture, notwithstanding it found for a time, like all exiAing abuses, its support ers and its advocates, were generally abelished. The justice, or expediency, of capital punishments, eves for crimes of the first degree, was questioned ; and in some very important instances the practice was relinquished, with manifest advantage to the interests of the commu. The application of the punishmeut of death to minor offences was combated with still greater success, and a willingness was evince] by almost every nation in Europe, to avail itself of the information that - had thus been given, and to modify its institutions upon more humane and enlightened principles. pity. The most prominent fact, and which could not fail 'o strike the attention of every writer oa this subject, was, that iu the application of capital punis!....ieuts to a great variety of offences, different in their nature and degree, it was imp.osible for the administrators of justice to ap ply the thresened punisluuents with the indiscriminat ing rigour revired by law ; and consequently, that a considerable number, and perhaps a great majority of offenders, escaped without either punishment or cor rection. In order to remedy a defect so dangerous to society, as well as to alleviate the sev.:rity of existing laws, two legulations seemed indispensably requisite : Ist, That punishments should he proportioned 'to of fences; and Itdly, That when justly incurred, they should iiivaeiably indicted—and the demonstration of these maxims, and the inculcation of the necessity of their adoption, form the great and leading feature of almost every work which has hitherto been published on the subject. Favonrabh., however, to the interests of the commu nity as such as a system may appear. and earnestly as its more general introduction Las been recommended, it may justly be doubted, whether, if it could be carried into effect, it would be au:ruled with the advantages expected from it. To define certain crimes by the degree of their enormity, to apply to each a . ptu aki.arzut proportioned to the offence, and to provide that such punishment shall be inflicted, seem: to be the perfection of the plan. But it ought not to be furgotten, that these inflictions arc not to take place on inert mat ter, but on a sentitiont and intelligent being, capable, not merely of suffering, but endowed with feelings of reounse, sorrow, penitence, and shame, which vary in every individual, and arc implanted by nature in the huinun bosom, fur the wisest and most important pur poses. Disregarding, however, the effect produced on the patient, the talatel punishment proceeds, equally insensible to the obstinate defiance of hardened guilt, or the agonies and entreaties of the deepest contrition; and haring performed the same invariable operati a on every person subjected to its influence, dismisses them alike, either to pe• severe in, or reform their con duct, according to the strength of their constitution, the character of their diapo:Lion, or the nature of the circumstances in which they are placed. , Such, it is apparent, would be the effect of a system t ch should proportion ;ho punishment to the crime, and require its invariable infliction, 14 indeed, we c.in ( ationali Ur I ritittr+ Our Ettno, frttcstittitsn anti SUNDAY, FEBRUARY 28, 1819. ' or a moment suppose that such a sysretu could ever be established ; but when from regarding it in a general view, we attempt to reduce it into practice, we ;hid no certain relation or coincidence between crime and pa nishment, upon which the opinions of mankind can bz expected to agree. Thus the crime of theft has in this country been punished by whipping, by imprisonment, by transportation, or by death ; and who shall decide which of these is the most appropriate ? That this often depends upon circumstances extrinsic of the crime itself, all persons will admit. To estimate crimes by the idea we may f .rm of their degree of moral gnus, and to punish them aecordingly, may scow to some a task of no great difficulty ; but when we pretend to judge of moral guilt, we undertake what it is impossible we should accomplish, and find ourselves compelled to rely on those mere ostensible indications only, which affect the interests of society. Accordingly all moralics have allowed that this is not the criterion upon which a scale of punishments con?, be formed. It will perhaps he still contended, that as the measure of crimes is the in3tiry done to society, punir.hments should be so applied us to deter others from the perpmrat:un of offences.by the force of example. Nor will this be Beni-d rts long as such examples are founded on a principle of strict jus tice towards the offender ; but when carried beyond these bounds, for tim mere purpose of deterring others, it is evident theretkan he no limits to the severity of punishments, but that as crimes incroase, punishments must be inflicted " still snore Morrill. 'mud striking," till the further possibility of human suffering is ex hausted. If the prevention of crimes by example were the object in view, the punishment must not be proportion ed to the crime committed, but to the frequency, faci.. lity, or injurious effectes of the crimes apprehended, and must continually vary, with those circumstances, 1 front the extreme of lenity to that of severity. One only rule of punishment can, theretbre, be relied on, ma. that which is necessary to effect the reformation of the eflieler. Till this is accomplished, tire punish ment ought not to be relaxed ; us limn as this is efll:cted punishment is no longer necessary. Whatever advan tage may be derived to society front the example given by such process, is legitimately obtained, and will have its natural and proper effect. It appeals to the reason and judgment of every individual, and affords him s convittim, that unless he conducts himself accordingly to the laws and regulations of society, he will have to eudergo a similar process—whilst the sanguinary and cruel punishments which are indiscriminately inflicted on the hardened and the penitent, bcfwe commisserat. ing, or unfeeling multitudes, are wholly Me ffivient, or produce sensations in the highest degree uniavourable to moral inqaovement. In Fact this accurase pmportion between crimes and punishments, although helot out by many writers as an ideal mark to direct their aim, has never been found to be practicably attainable. " Even Beecaria himself, by whom this scale was suggested, does not seem to think that it could be applied with precision to the obscure and infinite combinations of human action. He places, indeed, in the first place, those crimes which imme. diutely tend to the dissolution of society ; in the lowest, these which do t!to smallest possible injustice to a pri vate member of that society ; and between these es. tremes he puts all actions contrary to the pubrc good, and which descend by insensible degrees, &crewing from the highest to the lowest. But he adds, that it will be sufficient fur a wise legislator to mark the principal divisions withoat disturbing the order; lest crimes of the first degree be assigned to punishments of t h e lea. Illack;stone, whose theoretic notions were perhaps corrected by practice, doubts whether a ear responding scale of punishments be not tea romantic an ides. But he in effect agrees with Becearia, when he says, Can wise legislator will at least soak the prime, ze< 7/11‘(:,7- PRICE 9', pal devisions, and not assign punishment of the first de gree to offences of 111 inferior rank." In the discussions which took place in America be tween Dr. Franklin and his tv:sociates, prior to the re.. laxatiou of their Penal laws, this idea of the application of speci".ic punishments to specific crimes Will strongly insisted on ; and a very inte:ligent writer declares, that " he has no more doubt of every crime having its cuss in moral and physical influence, than he has of the efficacy ol Peruvian hark in curing the intermitting fe%er," But let in; observe how he succeeds when he attempts to enter into pat ticulars. " Tue only. diffi culty," says he, " is to find out the pryer remedy or remedies tut particular vices. M. I)ufriche de iNalaye, in his elaborate treatise upon penal laws, has perfOrmed the n;liim; of a pioneer upon this difficult sub j ect. Ha has il.vidod crimes into class.a, and hiss affixed punish ments to each of titein, in a number ofingemous tables. :Mule of the connexions he has established between crimes and punishments appear to be just; but many of his panishmeuts are an - Ur:try to the first principles of justice in man, and all of them are, in my opinion, improper, us tar as he orders them to be inflicted in the eye of the public." This in4enious writer has not, however, attempted to substitute any scale of his own ; and notwithstanding the efforts that have since been made by other enlightened individuals, it seems by no means probable that this object can ever be accomplished to any useful or beneficial•exteut. The error, however, if we may venture so to call, it, is not in the idea that every crime (or railer every criminal disposition) has its care in moral and physical . influeuce, but in supposing that there is seize certain . punishment appropriated to every crime, which if it could be discovered, would piuve an infuilible remedy; tin when we consider the ever variable nature of the human mind, differing not only in different individuals, but continually fluctuatiug evea in the seine person, it is evident, that ill order to eflect any alteration either of conduct or opinion, such measures must be adopted as are suitable to the peculiar situation, disposition, and feelings of the party; and consequently that this moral and physical influence must be applied iu such diver sity of final, and with such variations of lenity and severity, as way from time to time suit the circum stance. of the case. %% lien we speak of punishing crimes, we are in danger of being misled by a figure of speech. In fact, we do not punish the crime, but the individual why commits the crime; Ad ivhatever end the punishment is intended to answer, it must bear a, relation to the nature, disposition, and circumstances of : such individual. To hang up indiscriminately a eertairk number of person, because they have committed a certain act, without any regard to the peculiar circum stances under which suck act was committed, or by which every different case is distinguished, o without any clear idea of the result to ms p 2 0 would be the height of injustice ; and with regard to interim. punishments, it must be apparent, un the slightest reflection, that the sane punishment applied to different persons may p:iduce nut only a diCerent, but a contrary edixt, and that which may be ueves anry to reftem one, may only serve to harden another. Tu apply the same punishment to all, is, therefore, a kind of empiricism in legislation, which pretends by a certain specific to care a certain crime, without any re,.. thrence to the state of the party on whom the nostntra is to be tried. The consequences of this have been must final to the interests of society, and under the pretest of an impartial administration of justice, the great....t possible diversify has alwhys subsisted, but in the cone sequences produced. That which to one is agony, another disregards ; and, transportation, which by some may be considered as the utinoq extreme of misery, may to others resemble en excursion of pleasure. But this inequality is the least portion of the evil The only rational object which punishment should have in view, is frustrated by this blind and iteliscriminutiug process; and it is iu consequence of this, that criminale, after having gone through wine prescriptive mode of disci. pliue, are again turned louse on society, "more har dened in their crimes, and more instructed." On this subject then, one of the most important that turi en guge the attention of the human faculties, it is highly requisite that a thorough investigation shoald nose place ; in the result of winch, i; may perhaps arpcae, that the talisman to which we have trusted is no longer to be relied on ; that there is no short end exiediiieea way of extirpating moral evil ; but the% it we wish to