The National Register. — London, England, 1819-03-01 00:00:00

4 , ' 1 ( 471 it-t, .. . 4itauonait 0110 tLihitt,r+ !)uv Ling, Con6titution anti I aimsi No. 578.—V0t. XII. POLITICAL IAISQUISI PION. ON PROPOSED IMPROVEMENTS IN CRIMINAL LAW. Tel the course of the last century, a very general sm. salon was created throughout Europe against the se verity and injustice of its criminal law In exciting Cte feeling, hiontesquen and Voltaire led the way w:th distinguished ability and success; but it was ia ti State and nada despotic Government, that this sebjxt was opened to its full extent, in the cel work of the Marquis &eerie. liy these err:tine; not only a great change of opinion, hut great imie-ove.nents in criminal legislation, were M .. ..cute& in many counties et Europe. The uee of torture, netwitlistanding it tinuid tier a time, like all existing abe , es, ife , support ers and its advocates, were generally abolished. The jestice, or expediency, of capital punishments, even for crimes of the first degree, was questioned ; and in some very important instances the pure lee was relinquished; esidi nianikst adeantage to the inters ste of the commu nity. The application of tbe penisliment of death to minor offences was combated with still greater success, and a willingness was evineed by almost every nation Europe., to avail itself of the inferan ton that bed t'ats been given, and to modify its institutions upon :were humane and enlightened principles. The most pronsitient fact, and which could not fail to strike the attention of every writer on this sull,:cet, was, that in the application of capital punishments to a great variety of offences, different in their nature and degree, it was hapee.,ible for the administrators of justice to ap ply the threatened pueishm nts with the indiscrimistat iae rigour reqeired Ly law ; and consequently, that a rensiderable number, and perhaps a great re:3 . 04-4y of (Anders, escaped without either punishment or cot reaion. In order to remedy a defect so dangerous to society, as well as to alleviate the severity of existing laws, two regulations seemed indispensably requisite : Ist, That paeishinents should be proportioned to of fences; and My, That when justly incurred, they slainid be invariably inflicted—and the demonstration of these maxims, and the inculcation of the necessity of their adoption, form the great and leading feature ef almost every work which has hitherto been published ea the Favourable, however, to the interests of the ctnnmu nlty as suLli a a system may appear. and earnestly as its more general introduction has Leen recommended, it may justly be. deuhted, whether, if it could be carried into effect, it would he attended with the advantages expected from it. To define certain crimes by the &vee of their enormity, to apply to each a re r, mint proportioned to Cie 4i:fence, and to provide tl;at sue!' pani.Oinctit shall be inflicted, seems to be the perfection ef the ,clan. Pout it ought not. to be forgotten, that these hillictions arc not to take place on inert mat ter, but on a sentinent and intelligent belch;, nut merely of suffixing, but endowed with feelitis of remorse, sorrow, penitence, and shame, which vary in every individual, and are implanted by nature in the human bosom, tin. the wintst and most. important pur poses. Disregardiug. however, the effect produced un the iratient, the allotted punishment proceeds, equally iestesible to the obstinate defiance of hardened or the agonies and entreaties of the deepest coatritian; and having pm-termed the same invariubic opeream on every person subjected to its influence, dismisses them alike, either to pc: severe in, or reform their con duct, according to the strength of their constitution, the character of their diepoeititm, or the nature of the circumstances in which they are placed. Such, it is apparent, woald be the eTect of a system which should proportim the punishment to the crime, and require its invariable; iafietiun, if, indeed, we can MONDAY, MARCH 1 1819. or a moment suppose that such a system could ever I, established ; but when from regarding it in a general view, we attempt to reduce it into practice, we find no certain re'ation or coincidence between *rime and pu nishment, upon which the opinions of mankind can be expected to agree. Thus the crime of tliidt has in this country been punished by whipping, by imprisonment, by transportation, or by death; and whit' shall decide which of these is the most appropriate ? That this often depends upon circumstances extrinsic of the crime itself, ali persons will admit. To estimate crimes by the id.Nt we may f4rm of their degree of mural guilt, and to punish them trcronlingiy, ray scent 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 more ostensible indications only, which affect the interests of society. Accordingly all moralists have allowed that this is not the criterion viten which a ' scale of punthments could be fitrmed. It will perhaps he still contemiA, that as the measure of crimes is thn injury done to society, punishments should be so applied as to deter others from the rrytration of offences by the force of example. Nor will this Le denied as long as such examples are founded on a principle of strict jus tice towards the °ander ; but. when carried beyond these bounds, for the we purpose ot deterring others, it is evident there can be no limits to the severity of punishments, Lot that as crimes intimate, punishments must be infikied " still more horrible and striking," till the further possibility of Lomas sufrering is ex hausted. If the prevention of crimes by example were the I object in view, the punishment must not be proportion ed to the crime committed, bat to the frequency, faci lity, or injurious effecter of the crimes apprehended, and must continually vary with those circumstances, from the extreme of lenity to that of severity. One only rule of punishment can, therefine, be relied on, viz. that which is necessary to effect the reformation of the offender. Till this is accomplished, the punish ment ought not to be relaxed; as smn as this is effected punishment is no longer necessary. Whatever advan tage may be derived to society from 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 hint convieti:n, that unless be conducts himself accordinely to the laws and regulations of society, he %yid have to endergo a similar procestwitilst the sanguinary and cruel punishments which are indiscriminately .nflieted on the hardened and the penitent, befoni commisserat• ins, or unfeeling multitudes, are wholly inefficient, or province sensations in the hyiest degree uniavourable to nun ;i1 improvement. In fact this accurate proportion between crimes and punishments, although held out by many writers as an ideal mark to direct their aim, has never been found to be practicably 'Attain:Me. " Even Beccaria himself, by ‘vhein this scale was Fll=CSted, chief not seem to think that it could be applied with precision to £he obscure and infinite combinations of human action. He places, place, those crimes which itnme• indeed, in the first diately tend to the dissolution of sotiet' ; in the lowest, those which do the smallest possible injustice to a pri vate member of that society,; and between these ex tremes he puts all actions contrary to the pub( c good, and which descend by insensible degrees, decreasing from the highest to the lowest. But he adds, that it will h e saicient for a wise legislator to mark the principal divisions whine • ditharbing the order; lest crimes of the first degree te .ssigsied to punishments of the last. Blacksame, sto•.• theerei is notions were perhaps corrected by p, aete• , fottbts whether a cor responding scale u:pur )1e he not too romantic an idea. But he in Oh, with Becearia, when he says, that wise . • least zne.ri: the rrinci- Paicr: pal dsvisions, and not as.ign punisiluient of title first de' gree to offences of en inferior rank." In the discussions which took place in America be twecn Dr. Franklin and his a-soriates, prior to the re laxation of their penal laws, this idea of the ap . of specific punishments to specific crimes wos strongly insisted on; and a very intelligent vet itcr &claret:, that " he has no more doubt of eve7y crime having its cure in moral and physical influr.,.ce, itan h^ has of the efficacy of Peruvian hark in curing ti-e intermitting. fever," lint let us observe he succeeds when he attempts to enter into pat ti " Tae nuiy ditr evlty," say:; he, " is to Is al out the proton remedy or remedies Nor particular Dufriehe de Nalaye. in Lis elaborate treatise upon venal laws, ha. performed the oftlite of a pioneer upon this ditiantit so:i ) ect. He has divided crimes into classes, see has atli.cc l punish ments to each of them, in a number of ingenious tables. Some of the connexions he has ettabAisaed between. crimes and punisi.meuts appear to he jest; but many of his punishments arc contrary to the that principles of justice iu man, and a:I or them are, iu my opinion, improper, as far as he orders them to be intlicted in the eye of the 'italic." This ingenious writer has not, however, attempted to sobstitute any scale of his own ; and notwit!r;t:lno• tin eff:irts that have since beets made by other enii„L•c.ted it seems by nu means probable .tuft this obi^ct can ever be accomplished to any usclui or beneficiai exter.t. The error, however, it' we way venture so to call it, . is nut in the idea that every crime (or lather every criminal disposition) has its cure in moral and physic-.d influence, but in supposing that there is some certuil punishment appropriated to every crime, woielt it it could be discocred, would prove an infallible remedy ; tier when we consider the ever variable nature of the human mind, differing not only in different but continually fluctuating even in the same person, it is evident, that in order to effect any alteration either of conduct or opinion, such measures must be adopted as are suitable to the peculiar situation, disp sition, and feelings of the party ; and consequently that this moral and physical influence must be applied in such diver. city of them, and with such variations of lenity and severity', as may from tiros to time suit the circum stances of the can:. When we speak of punishing crimes, we are in danger or' being misled by a figure of speech. In fact, we do nut punish the crim.., but the individual who commits the cii,ae; and whatever end the punishment is intended to answer, it must Lear a relation to the nature, disposition, and .::cunistances of such individual. To hang up indiscriminately a certain number of }arsons, because they have cununitted certain set, without any regard to the peculiar circum stances under which such act was committed, or by which every different case is distinguished or even without any clear idea of the result to be produced would be the height of injustice ; and with regard to interimr punishments, it must be apparent, un the slightest reflection, that the sane punishment applied to different persons may praduce net only a &Herrn . , but a co: , ~,, effect, and that which may be neces sary to ittiocin one, may only serve to harden another. To apply the sama punishment to al, is, therefore, a kind of empiricism in legislatio 1, which pretends by *a certain specific to care a certain crime, wit:Mint any re. ference to tit' , state of the party on whom the nostrum is to be tried. The consequences of this have Leen must thral to the interests of society, and under the pretext of an impartial administration of justice, the greatest po chic diversi.y has alwhys subsisted, but in the con , sequences produced. That which to one is agony, another disregards ; and, transportation, which by :AMC may be considered as the utino,t extreme of misery, may to others resemble an excursion of pleasure. But this insquality is the least portion of the evil The only rational object which punishment should have in view, is frustrated by this blind and indiseriminuting process; and it is in consequence of this, that criminals, after having gone through some prescriptive mode of disci pline, are no-ain turned loose on society, "more bar. dened in their crimes, and more instructed." On this subject then, one of the most important that can en gage the attention of the human faculties, it is highly requisite that a thorough investigation should tat,. place ; in the result of which, i, may perhaps appear, that the talisman to which we have trusted is no lonzt r to be relied on ; that there is no short and expcdii.:( ut way of extirpating mural evil ; but that, if we wad. to •7, •ol ... , : ...., . . ... - . , . t.:.. . . . . , ii ~ i , 1 ti ' A . 1 4 4 a i ‘E. 1 i I