PUNISHMENT In noticing the present state of the science of penal law, the course we shall adopt, as best suited to the narrow space within which our observations must be confined, is, in the first place, to give an outline of the theory of punishment, according to the opinions of some distinguished modern writers, and afterwards to offer a sketch of the progress which penal legislation has recently made, as well on the Continent as in Great Britain.

Experience abundantly proves, that the establishment of a tolerably good, much less of a perfect system of law, whether civil or criminal, is a very slow and difficult operation. Criminal law everywhere begins, where, amongst savages, it continues and ends, with the pursuit and gratification of the passion of revenge. Injuries, or presumed injuries, are punished according to the will and power of the injured, whose might, in truth, constitutes their right. The first step in civilization is the social union for the protection of every member of it from injury, by the exercise of the aggregate power of the whole in his defence. But in some countries ages have elapsed before, and in others it has never come to pass, that any comprehensive view is taken of penal jurisprudence, so as to enumerate and classify offences, and to annex to them the punishments best adapted to prevent their recurrence. Unless the public feeling is outraged by some glaring enormity, the mass of the people concern themselves little with the relations existing between crimes and punishments; and it is only by opening upon a nation the lights of reason and philosophy, that it can be brought to appreciate the blessing of a wise and just criminal code. It is the task of the philosopher to direct the opinion of the multitude in the direction of truth and justice; nor is it possible to estimate too highly the benefits which mankind are deriving from the wisdom which has been bequeathed to them by a Montesquieu, a Filangieri, a Beccaria, or a Bentham.^[1. The first two of these writers not having offered any thing like a regular theory of penal law, it will suffice to refer the reader to their respective works, without more particular notice here. ]

The Marquis of Beccaria’s well-known treatise, Dê Delitti c Delle Pene i has acquired a great and deserved celebrity.^[2. The translation into French by Morellet, with Diderot’s notes, (Patis, 1797), is the preferable edition. ] That remarkable man was the first to promulgate to Europe the outlines of a system of jurisprudence founded upon the principle of “the greatest happiness of the greatest number.” Assuming the general utility to be the only legitimate object of law, Beccaria professes to inquire, What is the origin of punishments, and what is the foundation of the right to punish? What are the practicable means, under a good legislation, of seizing the criminal, and of discovering and ascertaining the crime? Is torturing the criminal just, and does it lead to the end proposed by the laws? Ought not punishments to be proportioned to crimes, and how is this proportion to be established? What is the measure of the gravity of crimes? Is the punishment of death useful and necessary for the security and good order of society? What punishments ought to be inflicted on different crimes? Are the same punishments equally useful at all times? What influence have they upon manners? What are the most efficacious means of preventing crimes? In offering solutions of these problems, Beccaria proclaims, in the outset, that political morality, of which punishment is a part, ought to be founded upon the permanent sentiments of the human heart, and that the right to punish is derived from the social contract, wherein every individual has surrendered to the society so much of his liberty as the necessities of the whole require him to sacrifice, and no more. Every exercise of power, every punishment, is an abuse of justice, unless it is necessary for the preservation of the common deposit of public liberty. Three consequences follow: first, that it belongs to law alone, as the condition of the social contract, to award punishment to crime; secondly, that it is the province of the judge, not of the sovereign power, to determine the fact of the violation of the law; thirdly, that the inutility of a punishment is sufficient to constitute its injustice, as contrary to the social contract. In regard to the gravity of punishment, Beccaria held that it should be relative to the actual circumstances of a nation, because it may be requisite to awe more strongly the minds of a people recently elapsed from barbarism than those of a people whose sensibilities have been softened by the influence of civilization. The punishment of death is declared not to be authorized by any right belonging to society, but to be rather the act of the nation making war against a citizen whose destruction is regarded as useful and necessary to the society’s preservation. An extreme case may arise, in times of national troubles, when the death of a citizen may be justifiable by necessity, but never under the ordinary and tranquil reign of the law. In other words, it is only when necessary, in the strictest sense, that capital punishment is just. Punishment should be prompt, because the less time that intervenes between it and the offence, the closer and stronger will be the association of ideas, so that the punishment will be'regarded as the effect of the crime. It should also be analogous to the crime; should be public; and, above all, certain and inevitable, subject to the rare exercise of the prerogative of mercy. A due proportion must exist between crimes and their punishments; and if mathematical calculations could be rendered applicable to the infinite and obscure combinations of human actions, there should be a progressive scale of punishments, corresponding with all crimes, from the gravest down to the lightest. Beccaria divides crimes into three classes: viz. those destructive to society; those which attack the citizen in life, wealth, or honour; and those which are generally injurious to the public welfare. In his judgment, the way to prevent duels is to punish the aggressor who gives the first provocation; thefts are to be corrected by fine, or compensative labour; and suicide is not to be regarded as a crime in the sight of men. Such are some of the ideas promulgated by Beccaria, as flowing from the principle, that public utility is the only solid basis of human justice. We shall presently see, that this principle has by no means obtained the general assent of jurists; but the views of Beccaria are throughout consistent and luminous, and were extraordinarily in advance of the age in which he lived. The following general theorem is given as the conclusion of his essay: In order that a punishment should not be a violence of one, or of several, against a citizen, it should be public, prompt, necessary, the least possible under given circumstances, proportioned to the offence, and fixed by the law.

It is to our distinguished countryman, Bentham, that belongs the honour of having been the first to travel over the [7:18:732]whole field of penal legislation; to shew the intimate connexion that exists between all its parts; the mutual dependence and relation of the civil and penal codes; and the impossibility of framing either of these portions of law without having previously taken a comprehensive survey of the whole. For the details we must refer to the works themselves, which so completely exhaust the subject, that the theory offered is complete in all its parts. In that portion of the Traites de Legislation Civile et Penale, entitled, Principes du Code Penale, and in the later and more comprehensive treatise, entitled, Theorie des Peines et des Recompenses, will be found the principlesofa complete penal code, laid down with scientific precision, definitions, and classifications.^[3. We quote from Μ. Dumont’s translations. The first complete edition of Bentham’s works in English, is now in the course of publication. under the superintendence of his executor. ] Like Beccaria, Bentham recognized the general utility as the sole object of legislation. A crime or offence, therefore, under his theory, is an act which ought to be prohibited by reason of some evil to which it gives rise, or tends to give rise. Crimes are then divided into four classes, viz:

1st, Private offences.

2d, Self-regarding offences.

3d, Semi-public offences.

4th, Public offences.

And under these four general heads, and the combination of them, all offences may be classed and arranged. These heads are again subdivided, thus:

Private offences are, either against the person, against property, against the reputation, or against the condition in life.

Self-regarding offences may be similarly subdivided, and are enumerated rather to remind the legislator that they are out of his sphere.

Semi-public offences consist in the violation of the laws designed to prevent physical calamities to the inhabitants of a given district, or malicious injuries to particular classes of persons.

Public offences are of nine kinds, viz: against the external security of the state, against justice and police, against the national forces, against the public revenue, against the population and the national wealth, against the sovereign power, and against religion.

The remedies applicable to these offences, and the means, direct and indirect, of preventing their commission, form the subject of the Principes du Code Penal.

The subsequent work (Théorie des Peines, &c.) sets out by thus defining legal punishment: “According to the principle of utility, legal punishments are evils inflicted, with judicial forms, on individuals convicted of some hurtful act, forbidden by the law, and in order to prevent similar acts.”^[4. Dr. Johnson’s definition of punishment was, “any infliction or pain in vengeance of a crime that of Grotius, “malum passionis quod infligitur ob malum actionis.” The latter is obviously the better of the two. ] The same division as that of private offences is then made applicable to punishments, inasmuch as an individual can only be punished by affecting either his person, his property, his reputation, or his condition. Personal or corporal punishments are then subdivided into, lst, Punishments simply afflictive.

2d, afflictive by complication.

3d, restrictive.

4th, active or laborious.

5th, capital.

Those affecting property, reputation, or condition, alike deprive the individual of some advantage which he before enjoyed, and are either privations, losses, or forfeitures. Thus are punishments reduced to two classes; viz. 1st, corporal, and 2d, privative punishments.

According to Bentham, the end of punishment is twofold; to prevent the repetition of similar offences, and to repair, as much as possible, the evil of the offence committed. He lays down the following rules, which serve to explain the general proposition of Beccaria, that a proportion should be established between crimes and punishments, viz:

1st, The evil which the person punished is to sustain from the punishment, ifìust exceed the advantage derivable by him from the crime.

2d, When the act is of a nature to fiirnish a conclusive proof of habitude, the punishment must be severe enough to exceed not only the advantage of the particular offence, but also of all similar offences which may be supposed to have been committed with impunity by the same offender.

3d, The punishment ought to exceed the advantage of the crime to the extent of making up that which the punishment wants in point of certainty and of proximity.

4th, If two or more crimes concur, the most hurtful ought to be subjected to a more severe punishment, in order that the offender may have a motive to stop at the least offence.

5th, The more hurtful a crime, the more may a heavy punishment be hazarded for the chance of preventing it.

6th, The same punishment ought not to be inflicted for the same crime on all offenders without exception. Regard must be had to the circumstances which influence sensibility.

These rules will better serve as a guide to the measure of punishment, than any attempt at the mathematical scale suggested by Beccaria, which seems inapplicable to the infinite varieties of the human mind. An ancient writer has bequeathed us a plainer maxim on this point:

adsit

Regula peccatis, quae paenas irroget acquas, Nee scuticà dignum, horribili sectere flagello.^[5. Hυrαt lib. i. sat. 3. ]

The qualities enumerated by Bentham as desirable to every mode of punishment, in order that it may answer its proper ends, are these :—

1st, Divisibility; so that it may be susceptible of addition or diminution, either in intensity or duration. Corporal chastisement, hard labour, and imprisonment, are instances of punishments alike possessing this quality.

2d, Certainty. A punishment is uncertain and unequal in itself, when an offender may possibly undergo it, without suffering any evil. Banishment, for example, may be good or evil according to various circumstances.

3d, Commensurability. If death were inflicted on three offences of different degrees of guilt, the punishment would not be commensurate, but would leave to the offender the choice of the crime which might be easiest of execution.

4th, Analogy. There should be some characteristic resemblance between the crime and the punishment. Not exactly “eye for eye, and tooth for tooth,” but something to strike the memory and imagination by association.

5th, Exemplarity, so that there be not only the reality, but the appearance of penality; otherwise the effect on the public will be lost.

6th, Economy; viz. that the degree of severity be not greater than the end requires, and also that the public charge be not enhanced more than is necessary.

7th, Remissibility. There should be an opportunity for remission or revocation. Capital punishment is the strongest instance of a deficiency of this quality.

8th, Suppression of the power of injury. It may be possible, under extraordinary circumstances, that death is the only available punishment possessing this quality.

9th, Tendency to moral amendment. If fear alone operates, the criminal will not be reformed. Reformation is a change in the character and moral habits. The association of prisoners is the grand obstacle in the way of imparting this quality to imprisonment.
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10th, Convertibility to profit. This quality belongs only to certain kinds of punishments, such as pecuniary fines, or deprivation of employments, which may be conferred on more worthy persons.

11 th, Simplicity in description is so obviously desirable as to require no comment.

12th, Popularity; that is to say, that in the choice of punishments, the legislature should carefully avoid such as would shock established prejudices.

The above catalogue will assist the judgment in determining how far a given punishment is desirable; but Bentham adds a caution, that in this as in every inquiry, we should begin by forming an abstract idea of the qualities which an object ought to possess, in order to reason pertinently about it, otherwise approbation or disapprobation is merely a confused sentiment of sympathy or antipathy. It should also be observed, in reference to the catalogue, that regard is to be had not only to one quality in particular, but to all taken together. No mode of punishment unites them all, but, according to the nature of the offences, some are more important than others. Thus, for graver crimes, exemplarity and analogy are especially to be regarded; for lighter offences, economy and reformation; for crimes against property, convertibility to profit, from whence compensation may be derived for the party injured.

To illustrate the applicability of Bentham’s penal qualities, let us refer to one or two of the most familiar punishments. Imprisonment, for instance, is very efficacious for suppressing the prisoner’s power of doing injury, whilst he continues in custody. It may, or may not be made profitable, according to the mode in which the prisoners are employed; but under the plan of the Panoptico, the profit derivable from the earnings is a leading feature of that establishment. In respect of certainty, or equality, imprisonment is evidently very defective, as the evil of it depends so much upon the age, the health, the habits, and frame of mind of the prisoner. It is divisible, both in time and severity; and is in some sort exemplary, since either the public may be admitted, as proposed in the Panoptico plan, or the sight of the building will strike the imagination with a degree of terror. In point of simplicity of description it is perfect, since all understand what confinement means. In respect of reformation, the effect of imprisonment must depend upon the system of discipline adopted. Bentham stigmatises the association of prisoners in general as pregnant With evil, and as constituting a punishment evidently uncertain, unequal, unexemplary, unprofitable, productive of a variety of suffering, of which no one who has not experienced it, can form a tolerably just idea. The hurtful consequences of such association, which are vaguely expressed by the word corruption, are thus defined by Bentham:

1st, The strengthening of the motives which excite to' the commission of crimes.

2d, The weakening of the considerations which tend to the repression of crimes.

3d, The instruction acquired in the art of accomplishing crimes.

Bentham s views of what a prison should be are fully developed in his Panoptico, wherein labour is made the main engine of reformation. We have treated this subject more fully in another place, (see article Prisons); but although great advances have been lately made in regard to it, the opinions ofBentham are stillfullof instruction,and shouldby no means be lost sight of in determining the nature and conditions of imprisonment, the punishment par excellence of civilized nations, and the most important of any in respect of the numbers to whom it is applied.

There are three other descriptions of confinement, which Bentham also discusses. Quasi-imprisonment, when the individual is confined within the district of his ordinary residence. Pelegation, when he is sent away from his ordinary residence, and confined within a certain district in the state. Banishment, when he is removed from and forbidden to return to the state. All these are preferable to imprisonment in point of economy; they are defective in equality of operation; and though divisible in time, are scarcely so otherwise. Banishment has too little of example in it, but, under some circumstances, may prove reformatory. Quasi-imprisonment, by continuing the offender in old habits, may be corrupting, but relegation, by removing him from bad associations into a new sphere, holds out, in general, favourable prospects of his amendment.

The punishment of transportation, as enforced for many years past in the Australian colonies by the British government, has scarcely one of the qualities above mentioned as desirable. It fails especially in the great object of example ; it neither deters others, nor corrects the offender himself. Instead of suppressing the power of commission, it is the fertile source of crimes. It does not supply the means of compensation to the party injured; it is not Economical, but very costly to the state. Experience has fully confirmed the sagacity of Bentham’s objections to this mode of punishment, and of Archbishop Whately’s subsequent denunciation of it, both as a penal measure and as a branch' of colonial policy. A valuable Report from the late Sélect Committee on Transportation,^[6. See Report of the Select Committee of the House of Commons on Transportation, ordered to be printed 3d August 1838. ] has furnished unquestionable proofs “that the two main characteristics of transportation as a punishment are, inefficiency in deterring from crime, and remarkable efficiency, not in reforming, but iri still further corrupting those who undergo the punishment; and that these qualities of inefficiency for good and efficiency for evil, are inherent in the system, which is not, 1 therefore, susceptible of any satisfactory improvemént.” The committee have, therefore, recommended its abolition' as soon as practicable. (See article Transportation.)

The rules of Bentham serve as well for the examination' of capital, as of secondary punishments. Death has the advantageous qualities of completely annihilating the power of injury; of being analogous, as well as popular, in the ’ case of murder; and of being always exemplary. On the other hand, it is not profitable, but costly, in depriving the community of one of its members; it is extremely unequal, according to the sentiments and condition of the offender; it is irrevocable, and, except in the case of murder, unpopular. Balancing all thèse considerations, the conclusion is arrived at, that the prodigality of capital punishment has been an error of legislators, and that there has been a want of reflection in applying it to a class of u i nhappy and de< graded men, who attach but little value to life. If, for the purpose of deterring, it should be preserved at all, it should be for crimes which excite the public hoι⅛or to the highest degree, such as atrocious murders, and those by which several lives are destroyed; in which cases' the execution' should be accompanied by every m leans of tragic effect.· The noħ-execution of the law is ñìentiohéd as a collateral· effect of the abuse of capital punishment; and this has indeed been the main argument of those, who, from Sir Samuel Romilly, down to tħe present day, have laboured for the mitigation of the criminal l⅛w of England. It is certain that excessive severity defeats its own object, in so far as it induces the persons entrusted with the administration of the laws, to substitute their own nbtions of right, from time to time, for the will of the legislature.

Bentham’s nomenclature and classifications have been objected to as too arbitrary for the state of the science; but taking his theory of punishment as a part of his general system of legislation, it cannot but be regarded as a masterpiece of jurisprudence. It is only time to dismiss such a [7:18:734]guide, when the inquirer shall have formed for himself a better abstract idea of punishment than Bentham’s suggestions have furnished.

The writers on different branches of penal law, since the commencement of the present century, have been so numerous, particularly on the Continent, that it would be vain to attempt to recapitulate here the various theories of punishment which have been offered. The names of Feuerbach, Mittermaier,^[7. Feuerbach’s Manual of Penal Law has run through twelve editions, and the last edition, enriched with the notes of Mittermaier. is especially recommended. f Lehrbuch des gemeinen in Deutschland gültigen peinlichen Hechts von Dr. Anselm Ritter von Feuerbach, herausgegeben von Dr. C. J. A. Mittermaier. Giessen, 1836.) ] and of a host of other learned men in Germany, are an honour to jurisprudence, however little practical result may have arisen from their labours. Several recent French writers are worthy of reference; especially Μ. Charles Lucas, and the Due de Broglie, on the punishment of death. Mr. E. G. Wakefield’s essay on the same subject, and Mr. Montagu’s collection of opinions on capital punishment, may be consulted with advantage. Archbishop Whately, in his well known Letters to Earl Grey on Secondary Punishments, has laid down very clearly and forcibly the principles by which the infliction of punishment ought to be regulated. “There are,” says the Archbishop, “three and only three objects with a view to which punishments can be inflicted or threatened; 1st, retribution, or vengeance, or a desire to allot a proportionate suffering to each degree of moral guilt, independent of any ulterior consideration, and solely with a view to the past ill-desert of the offender. 2dly, What may be called correction, or the prevention of a repetition of offence by the same individual, whether by his reformation or removal. 3dly, The prevention of the offence generally by the terror of a punishment denounced, whether that object be attained by the example of a culprit suffering the penalty, or simply by the mere threat and apprehension of it. To these appropriate objects may be added another incidental advantage, not belonging to punishment as such, but common to them with other legislative enactments; the public benefit in an economical point of view which may be conceivably derived directly from a punishment, as when criminals are usefully employed on any public work, so as to make, in that way, some compensation to society for the injury done to it. Such a compensation, however, we should remember, must necessarily be so very inadequate, that this object should always be made completely subordinate to the main end, or ends, proposed in the denunciation of punishment.” The archbishop then proceeds to shew that, regarding the prevention of crime as the great object, the infliction of just vengeance on the guilty is clearly out of man’s province, inasmuch as the degree of moral turpitude can never be perfectly known but to the searcher of all hearts, and that no man, nor number of men, can be authorised thus to render evil for evil for its own sake, but on the contrary such a procedure is expressly forbidden, both by morality and the Christian religion. Of the other two objects of punishment, the archbishop explains that the prevention of a repetition of the offence by the same individual, is of less importance than the prevention of crime generally by the terror of example or threat, and after shewing that every man punished is an instance, pro tanto, of the inefficacy of the law, remarks, “this absolute perfection, indeed, the entire prevention of crime, is a point unattainable; but it is a point to which we may approach indefinitely; it is the point towards which our measures must be always tending, and we must estimate their wisdom by the degrees of their approach to it.” Passing over thus briefly Archbishop Whately’s exposition of penal principles, we proceed to notice a recent masterly work by a distinguished foreign jurist on this subject.

The work in question contains a complete theory of penal law, founded upon ethical principles different from those of Beccaria and Bentham. We refer to Rossi’s valuable treatise. ( Traité de Droit Penal, par Μ. P. Rossi, Professeur du Droit Romain à l’Académie de Genève.) Μ. Rossi examines at large the foundation of the right to punish; whether it depends on a moral principle, or a material interest; whether it is to be traced to justice, or merely to utility? He rejects the notion of either individual, or general interest, conferring any such right; not admitting the ground of necessity, direct or indirect, or the existence of the social contract, upon which Beccaria relies. He holds that there exists a moral order in the world, binding upon all free and intelligent beings who are cognizant of it; that absolute justice is in perfect harmony with this moral order; and that all human justice, though not able to attain such perfection, ought to strive to approach it. Upon this justice, then, the right of punishment is founded; and punishment is defined as “the retribution made, by a legitimate judge, with pondération and measure, of evil for evil.” Thus, penal justice only acts when some duty is violated; for law and right are, under this theory, the same; and the natural effects of justice are instruction, intimidation, and amendment. A crime is defined as the violation of a duty towards society or individuals, requirable (exigible) in itself, and useful to the maintenance of public order; of a duty whose accomplishment can only be assured by the penal sanction, and whose infraction can be appreciated by human justice: and an enumeration of crimes and offences follows. In his third book, Μ. Rossi treats of the nature and end, the measure and effects of punishments, and then proceeds to give directions for the choice of them, pointing out the characteristics which should mark them, in order that the ends of human justice may be attained. Social justice, to be legitimate, must respect the conditions of moral justice; must take into account the imperfection of our means of knowledge and action; and must satisfy the exigencies of the material order in civil society. These rules will direct the choice of punishments, which in their application must be proportionate to the crime, and sufficient for the protection of the right. In order, then, to conform to the principle of justice, the legislator should choose such punishments as are,

(1st class) Personal,

Moral, Divisible.

To be in relation with our imperfect means of knowledge and action, he should choose such as are,

(2d class) Appreciable, Reparable, or remissable.

To satisfy the exigencies of the material order, punishments should be adapted to produce the effects which the legislator has in view, and should therefore be,

(3d class) Instructive and satisfying, Exemplary, Reformatory, Fortifying (rassurante.)

Trying different kinds of punishments by these conditions, it will appear that the punishment of death is of the first class, except that it is not divisible; that it is appreciable, because applicable to every one, but not remissible; that it is instructive, because when applied to a small number of crimes, it is a moral lesson to society; that it is only under particular circumstances that it is exemplary, or calculated to intimidate those disposed to commit crimes; that of course the dead cannot be reformed; and that it so far fortifies or assures society, that it suppresses the individual’s power of injury. In the result, Μ. Rossi declares capital[7:18:735] punishment admissible in itself, but in extreme cases only, and that its abolition is desirable when the advance of civilization shall have prepared men for so important a change.

Μ. Rossi regards all corporal punishment as of an immoral tendency, and considers imprisonment as the punishment best fitted to civilized society. He states the most essential object to be, such a separation of the convicted, as completely corresponds with the ends of penality, and moral amendment. But he seems to intend rather a kind of classification, than the entire separation of the prisoners from each other. He is opposed to transportation, and in a less degree to relegation and banishment, as being defective in the exemplary and reformatory qualities. Local interdiction, restraining the offender from frequenting particular districts, may, he thinks, be used with more advantage. He shows the immorality of infamous punishments, such as the pillory, and the impolicy and injustice of those which deprive offenders of civil rights, or of the whole, or the greater portion of their property. Lastly, he cautions the reader not to expect to find a punishment combining all desirable Dualities, much less one that unites them all in the same egree,

In his fourth book, Μ. Rossi offers instructions as to the formation of a penal code; for the details of which the enquirer is referred to this very systematic and philosophical work. Μ. Rossi concurs with Beccaria and Bentham in many important particulars; and although the principle upon which the right to punish rests may not have been satisfactorily determined by any of these authorities, still the short notice we have given of them will shew how far they have advanced the science of penal jurisprudence.

The efforts made in penal legislation have, from a variety of causes, been bolder on the Continent than in Britain. The result has assuredly not been always successful; but it is by such beginnings that the true course is pursued for the formation of a good penal code; and no doubt can be entertained, that imperfect as these, efforts have been, the condition of the people for whose use they were made, has been greatly benefited by them. Of all of them it may be said that they are deficient in respect of humanity, and the establishing a just proportion between crimes and punishments; and moreover erroneous in the including cases unfit, and excluding others fit for punishment, still leaving a vast discretion to the judges; but they have however, to the extent of the surface which they have covered, rendered a knowledge of the penal law practicable, and given great facility to its improvement by the recordation of its provisions. We shall give from one or two of the codes of criminal law now before us, an outline of their most prominent features.

The famous code collected under the auspices of the Emperor Charles V., and known under the name of the “Carolina,” and which, we are told in the preface, “is properly the collection and confirmation of the laws which have been, from time immemorial, in use in the tribunals in Germany,” is an elaborate work on penal jurisprudence; and in particular, is extremely copious and minute on the subject of torture, which was at that time deemed a highly efficient and indispensable instrument of criminal procedure.

The code commences, very properly, in respect of arrangement, with the judicial establishment; but after all, leaves it indeterminate with respect to the manner in which it is to be composed, and omits to give any exact and precise definition of the relative power of each of the several classes of individuals that enter into its formation. It appears clearly that there were to be certain established judges, and that to them were to be added all the nobles, in the quality of judges and assessors, not precisely fixing in what quality they are to act, or whether the decision was ultimately to rest with the judges, under the advice simply, or under the control, of those other judges or assessors. Next follows, not as might have been expected, an enumeration and definition of offences, and of the punishments annexed to them, but a minute account of cases, consisting of forty· one articles, in which torture may be employed to extract a confession of guilt. Afterwards come several articles respecting proof by witnesses; and then the distribution of offences, not as such, but by the punishment annexed to them.

In this code, the torture, as has been already mentioned, is most extensively applied. By article XLI. it is provided, that it shall be a sufficient ground for applying torture, in order to produce confession, in the instance of a man accused of incendiarism, whenever, in other respects, his conduct shall be suspicious. It is upon similar slight grounds throughout the code, that this most dreadful instrument is brought into action. The code, although defective in the arrangement of offences, contains some observations with regard to the indications of guilt from accompanying circumstances, that might not be found altogether useless at the present day.

The Code Carolina appears in the nineteenth century a barbarous piece of legislation, but was unquestionably a progress in its time. It had for its object the introduction of more regularity and measure in criminal proceedings and sentences. Its establishment was not effected without modification in some places, and even resistance in others. The following is a curious instance of an attempt to pervert its meaning. Article XI. declares, “it is never to be lost sight of, that prisons ought to be made and established for the safe custody of those detained, and not to be used as a dangerous punishment.” A French translation of the Carolina, for the use of the councils of war of the Swiss troops, printed at Bienne in 1767, contains this commentary: “Although the law recommends humanity with respect to the nature of the prison in general, we may say that in cases of atrocious crimes, and where the vengeance of the public is absolutely interested, the hardest and darkest dungeons ought to be used for the confinement of criminals, provided only that their lives are not risked.”^[8. Rossi, Introduction, chap, ii, ] This code is still the foundation of criminal law throughout the greater part of Germany and Switzerland, subject to many modifications which it has undergone in the course of modern legislation.

A criminal code was prepared for Corsica, under the direction of Louis XV. (Code Corse, ou Recueil des Edits, fyο., publies dans l’Isle de Corse depuis sa soumission à l’obeissance du Roi, Paris, 1778.) After enumerating the most prominent species of offences, such as treason, murder, theft, and homicide, and giving a view very far short of a complete one, of the field of criminal law, the framer of this code, (title IX.) has this article: “In respect of all other crimes and offences which are not mentioned above, we leave it to the prudence of the judges to condemn those who shall be guilty of them, to the punishment fitting for them, according to the exigence and circumstances of the case; not however allowing them the power of punishing with death, either natural or civil, except in the cases above enumerated ;” leaving them, however, a considerable latitude of power in the cases so unprovided for; that is, in the cases in which they were thus invested with despotic authority; namely, that of punishing by hard labour in the galleys, either for a limited period, or for life.

In the above two instances, we have specimens of two penal codes, formed at comparatively early periods. Next follow examples of others of a more modem date. A code for Bavaria was drawn up, by direction of the king, by Μ.
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Bexon, and published by him in a folio volume at Paris in 1807· It professes to contain a complete system of criminal jurisprudence, including punishments and police. Μ. Bexon, however, has by no means pursued the clear and natural course, of first enumerating what are to be deemed offences, and then declaring the penal consequences of committing such offences. He begins with a system of police, under the title of Legislation de la Surete, and then proceeds to state the several purposes to which this branch of administration is applicable. Now the characteristic feature of a system of police, is, that it is to serve for the prevention of offences; so that we have, at the outset, the rules of a system of administration employed for the prevention of certain acts which remain to be stated. In the subdivisions of the work, the dispositions are neither clear nor convenient. Crimes, punishments, tribunals, and procedure, are mixed together, instead of being kept separate and distinct, as they ought to be. The penal code itself adopts the old principle of division, and classes offences under the several heads of crimes against the public; crimes against persons; and crimes against things. But what is new in this work, is the distribution of these several species of offences into three distinct classes, according to their supposed delinquency, and which are denominated, 1. Contraventions et Fautes. 2. Délits. 3. Crimes. This is obviously an unnatural and inapposite system of division, as it supposes that each class of offences is susceptible of only three stages of extenuation or aggravation, while, in fact, the same act is capable of varying, and continually does vary, and that by extremely minute steps, throughout all the gradations of guilt.

The present penal legislation of France is, without doubt, far more rational and humane than that which existed before the Revolution. Still the Code Napoleon, the offspring of that imperial power which re-established confiscation, and re-opened Bastilles, is, in many respects, unworthy of the present state of French civilization. The penal branch of the Code Napoleon was decreed the 12th of February 1810, and promulgated the 22d of the same month. It is comprised within 114 moderately-sized octavo pages. It begins by declaring that a violation of the law, cognizable by the police, is a contravention; that a violation of the law, which is visited by a correctional punishment, is an offence; and that a violation of the law, which is visited by an afflictive and infamous punishment, is a crime. This division is quite arbitrary, and displays too much disregard of the intrinsic nature of human actions. Certainly it does not coincide with Μ. Rossi’s theory of the concordance of penal law with the moral order of things; for actions are in many instances placed in the catalogue of crimes and offences (such as the assembling together of twenty-one persons in one place, art. 291,) which have nothing like immorality about them. The several species of punishments employed are then enumerated, and are, 1. Death. 2. Hard labour for life. 3. Transportation. 4. Hard labour for limited periods. 5. Seclusion. 6. The carcan, (analogous to the pillory). 7. Banishment. 8. Civil degradation. 9∙ Imprisonment during a limited period in a house of correction. 10. Suspension, temporary, of certain civil rights. 11. Making satisfaction to the party injured. To these are added, in the cases specified, the drawing a ball, to be attached to the feet; imprinting on the right shoulder, by means of a red-hot iron, certain letters; standing on the carcan, having above the head affixed a writing in large and legible characters, mentioning the name of the patient, his profession, residence, punishment, and the occasion of it. Some of the punishments are also attended with certain civil disabilities, of which some are temporary, others perpetual. With regard to forfeiture, which figures to so great an extent in the English penal code, it is here declared not to attach in any case as the necessary consequence of conviction, but to have place only when expressly pronounced to be a part of the punishment, and the instances in which it is used are comparatively few; and even then the forfeited property remains liable to all just encumbrances, and to the rightful portions of the children, or other descendants.

Offences are divided into two classes, 1st, those affecting the public; and 2dly, those affecting individuals. Under the first class, the principal offences comprised are, offences against the exterior and interior of the state, levying war, counterfeiting the coin; and malversation on the part of public functionaries. Under the second head are included, offences affecting particular assignable persons, such as murder, and other personal injuries, perjury, and offences against property.

Under this code, the judges and officers of justice are placed in a somewhat undignified light, by various pecuniary fines of fi'om 16 to 200 francs, for pronouncing judgment notwithstanding an appeal, or other acts of misconduct. The policy of thus setting a money price on infractions of judicial duty is very questionable, although the judges should clearly be amenable to punishment of some kind for the slightest malversation of their functions.

Capital punishment is authorized by the Code Napoleon in many cases where it is obviously not justifiable by necessity, such as, for counterfeiting the coin, for destroying the national fortifications, &c. And the application of such degrading punishments as branding and the carcan, to a pretty wide class of offences, savours little of refinement. The establishments for hard labour, called the bagnes, though lately improved, are carried on upon a brutal system of force, which is disgraceful, as the penal instrument of a highly civilized nation.

The present criminal code of Prussia consists of 1577 articles. With much that is wise and humane, it mixes some enactments of quite revolting barbarity. It, in fact, confuses together a number of moral precepts, of administrative regulations, of legal dogmas, and penal enactments. More than twelve articles authorise the breaking the offender on the wheel, making nice distinctions where the punishment is to begin at the upper part of the body, and where at the legs. Hanging, decapitation by the axe, flogging with rods, and whips, are all specified as modes of punishment, and incendiaries are, in certain cases, to be burned alive. The definition of treason is fearfully vague. “The voluntary act of a subject, by which the state, or its chief, are attacked in an immediate manner,” art. 91; and there is the most striking immorality in the manner in which the wives of deserting soldiers are punished, if they do not betray their husbands, even in certain cases in which they may be declared innocent by the law.

The penal code of Austria is, upon the whole, of a milder character than that of Prussia, but its forms of procedure ι commit so much discretionary power to the administrators of the law, as to leave the people little real security against oppression. The 14th article authorizes solitary imprisonment of so severe a kind, as almost to amount to a lingering death. The punishment consists in “shutting up the convict in prison, without any communication, with as much light and space as is requisite to keep the prisoner in health, who is to have heavy irons constantly on his hands and feet, and round his body an iron ring fixed by a chain, except during labour; his diet shall be wholly bread and water, and every other day a warm mess, but never of meat; some bare boards are to form his bed, and all conversation is forbidden him.” Men are to be flogged with a staff, and women and children with rods, for many offences. Forging paper-money is punished with death; blasphemy, or spreading false religious doctrines, with imprisonment from six months to ten years. We will only add one curious specimen of a contravention, “Whoever endeavours to persuade an Austrian subject to establish himself in a foreign country, shall be punishable with confinement from one month to six months.” [7:18:737]The criminal law varies in every one of the States which form the United States of Amcrica, and consequently, taking the whole Union, there is a great inequality in the system of punishments, and more especially of capital punishments. The disproportionate penalties inflicted in different States for the same offence cannot but have an unfavourable tendency upon morals, in a country which, for all purposes of intercourse and traffic, is essentially one, although possessing various local legislatures. Many of these criminal laws will be found abstracted in Mr. Crawford’s Report, and in the Second Report of the Criminal Law Commissioners. The criminal code of Louisiana, drawn up by Mr. Livingston, is deservedly celebrated, and is remarkable for not inflicting capital punishment upon any crime whatsoever.

Having thus adverted to some specimens of criminal legislation abroad, we shall conclude with a notice of the progress that has of late years been made in England in this respect.

Notwithstanding the examples that have been thus set us abroad, the British legislature has shewn little disposition to collect into one body of criminal jurisprudence the various decisions and enactments which now constitute the penal system of this country. Great authorities, both dead and living, may indeed be quoted in support of a revision of our whole penal system, among whom none are entitled to more weight than Mr. Justice Blackstone, who in his Commentaries expressed himself decidedly in favour of such a revision, (b. iv. eh. 1.) Little or nothing, however, was done towards the improvement of the criminal law, until the late Sir Samuel Romilly, when he obtained a seat in Parliament, brought in a series of bills, having for their object to mitigate, in certain eases, the severity of the penal law, by substituting for the punishment of death transportation for life, or for limited periods. He procured the repeal of so much of the statute of 8th Elizabeth, as took away the benefit of clergy from persons stealing privily from the person, and also the repeal of capital punishment in eases of stealing to the amount of 40s. on navigable rivers, and of stealing from bleaching-grounds. He failed in his attempts to repeal the punishment of death in eases of stealing to the amount of 5s. privately in a shop, and to the value of 40s. in a dwelling-house; but as we shall presently see, these objects have been subsequently effected. Sir Samuel Romilly, and after him Sir James Mackintosh, had the merit of contending against the erroneous principle of severe punishment rarely inflicted, and advocating that of the uniform infliction of milder punishments, duly proportioned to the magnitude of offences; and it is to their exertions that is attributable much of the attention which the legislature has since bestowed upon the subject. We proceed to enumerate some recent statutes which have gradually mitigated the severity of our penal law, and otherwise improved the administration of criminal justice.

The act 7th Geo. IV. cap. 64, (1826), “for improving the administration of criminal justice in England,” among other provisions, enables bail to be taken in eases of felony, where there is not a strong presumption of guilt.

The act 7th and 8th Geo. IV. cap. 27, (1827), repeals upwards of 130 statutes, and parts of statutes, relative to the benefit of clergy, and to lareeny and other offences connected therewith, and to malicious injuries to property, and to remedies against the hundred, thereby clearing the way for the four acts next mentioned, (commonly called Sir Robert Peel’s), viz.:

The act 7th and 8th Geo. IV., cap. 28, (1827,) which, among other provisions, wholly abolishes the benefit of clergy, and declares that no person shall suffer death, unless for some felony previously excluded from benefit of clergy.

The act 7th and 8th Geo. IV., cap. 29, (1827,) for “con solidating and amending the laws relative to larceny, and other offences connected therewith,” which abolishes the distinction between grand and petty larceny, and declares that larceny shall be punished with transportation, or imprisonment with whipping. It then proceeds to inflict punishment on various offences of this description, amongst which, for robbery from the person, death; for stealing from the person, transportation, or imprisonment with whipping; for burglary, housebreaking, stealing in a dwelling-house to the value of L.5, and cattle and sheep-stealing, death. It also gives summary jurisdiction to justices of the peace over a variety of petty depredations.

The act 7th and 8th Geo. IV., cap. 30, (1827,) “for consolidating and amending the laws relative to malicious injuries to property,” inflicts the punishment of death for arson; for setting fire to coal mines, or to ships; and for riotously demolishing buildings, or machinery; also transportation, or imprisonment with whipping, for the destruction of manufactures, or machinery, or the destruction, or injury of seabanks, turnpikes, dams, cattle, stacks of corn,” &c.' It also gives summary jurisdiction to justices, in cases of injuries to trees, or fruit, and of various other petty trespasses.

The act 7th and 8th Geo. IV., cap. 31, (1827,) which consolidates and amends the laws relative to remedies against the hundred, for riotous destruction of property.

The act 9th Geo. IV., cap. 31, (1828,) repeals upwards of fifty statutes relative to offences against the person; enacts the punishment of death for murder, malicious shooting, cutting and maiming, administering poison, attempting to drown, suffocate, &c. and for rape and sodomy; and transportation or imprisonment for various other óffenees of a personal nature. It also gives summary jurisdiction to justices of the peace over common assaults.

The act 11th Geo. IV., and 1st Will. IV., cap. 66, (1830,) abolishes capital punishment in all eases of forgery, except those particularly specified, viz., forgery of the royal seals, or sign manual, of Exchequer bills, bank notes, wills, bills of exchange, promissory notes, or money-orders, of transfers of stock, or powers of attorney, and other forgeries connected with the preceding. Forgeries of other descriptions are subjected to transportation or imprisonment.

The act 2d Will. IV., cap. 34, (1832,) abolishes capital punishment for all offences whatever relative to the coin, and subjects them to transportation, or imprisonment.

The act 2d and 3d Will. IV., cap. 62, (18∙>2,) substitutes transportation for life for capital punishment, in cases of stealing in a dwelling-house to the value of L.5, and of cattle and sheep stealing; so far altering the provisions of the larceny act, 7th and 8th Geo. IV.

The act 2d and 3d Will. IV. cap. 123, substitutes transportation for life for capital punishment in all cases where the latter is inflicted by the 11th Geo. IV., and 1st Will. IV., except only the forgery of wills, and of powers of attorney for stock.

The act 3d and 4th Will. IV., cap. 44, (I833,) abolishes capital punishment for dwelling-house robbery as inflicted by the lareeny act, and substitutes transportation or imprisonment.

The act 4th Will. IV., cap. 26, (1834,) abolishes the practice of dissecting, or hanging in chains, persons convicted of murder.

The act 4th and 5th Will. IV., cap. 67, (1834,) abolishes capital punishment in case of returning from transportation.

The act 5th and 6th Will. IV., cap. 33, (1835,) extends the powers of taking bail in cases of felony, notwithstanding confession, or presumption of guilt.

The act 5th and 6th Will. IV., cap. 81, (1835,) abolishes capital punishment for letter stealing and sacrilege, and substitutes transportation or imprisonment.

The act 1st Victoria, cap. 23, (1837,) abolishes the punishment of the pillory in all eases whatsoever.
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The act 1st Victoria, cap. 84, (1837,) abolishes entirely the punishment of death for forgery, as retained by the 2d and 3d Will. IV., or any other existing laws, and substitutes transportation or imprisonment.

The act 1st Victoria, cap. 85, (1837,) makes new provisions for the punishment of offences against the person. Capital punishment is inflicted for administering poison, or doing bodily injury with intent to murder. Other offences with intent to commit murder, or for acts with intent to maim or disfigure, or to procure abortion, are made punishable with different degrees of transportation or imprisonment.

The act 1st Victoria, cap. 86, (1837,) limits capital punishment for burglary, to cases where that offence is accompanied by violence. In other cases, transportation or imprisonment.

The act 1st Victoria, cap. 87, (1837,) alters the former laws relative to robbery, and some other offences. The punishment for robbery, attended with cutting or wounding, is declared to be death, but in other cases, transportation or imprisonment. Obtaining property, by accusation of unnatural crimes, stealing from the person, assaults with intent to rob, obtaining property by menace, and plundering wrecks, are subjected to transportation or imprisonment.

The act 1st Victoria, cap. 88, (1837,) amends the laws relating to piracy, and subjects that offence to death, where murder is attempted, or to transportation or imprisonment, at the discretion of the court.

The act 1st Victoria, cap. 89, (1837,) amends the laws relating to arson, punishing with death the offences of setting fire to a dwelling-house, any person being therein, of setting fire to ships with intent to murder, and of hanging out false lights to shipping. For other offences under this head, transportation or imprisonment.

The act 1st Victoria, cap. 90, (1837,) substitutes transportation, during specified terms of years, for transportation for life, in a variety of cases particularized in the act.

Lastly, the act of 1st Victoria, cap. 91, (1837,) mitigates the punishment of death still further, by substituting transportation or imprisonment for it, in the cases of riotous assemblies, of seducing from allegiance, of certain offences against the revenue laws, and others enumerated in the act.

A reference to the acts above cited, will shew the gradual mitigation which has, within the last few years, been taking place in the severity of the ancient criminal law of England. Much has thus been effected in the way of the consolidation and arrangement of different branches of law under their proper heads, in particular statutes. Still, since nothing like codification has yet been attempted, the definitions and classifications of both crimes and punishments continue very vague and uncertain. All that we can usefully record here on the subject, is to state what crimes and punishments are understood, in a general sense, to mean by English lawyers.

A crime, says Blackstone, is the commission, or omission, of an act, in violation of a public law, either forbidding or commanding it. (Commentaries, vol. iv. ch. 5.)

A misdemeanour imports a crime which does not amount to felony, but is the subject of indictment. (Commentaries, vol. iv. ch. 5.) It is generally punishable with fine and imprisonment.

A felony is such a crime as, independently of other punishments, occasioned at common law a total forfeiture of lands, or goods, or both. (Commentaries, vol. iv. ch. 55.) A felony generally carries with it the idea of a capital crime. But felonies are either punishable with death, or not. Felonies are punishable with death, where the offence was excluded from benefit of clergy by the common law, or by any statute, before the 7th and 8th Geo. IV., cap. 28, or where, since that statute, they have been made capital; provided that in neither case the capital punishment has been taken away by any subsequent statute. In other cases, felonies are punishable either in the particular manner described by the statute relating thereto, or otherwise by transportation, or imprisonment, with whipping, if a male, at the discretion of the court.

Misprisions, and contempts, are a species of misdemeanour, affecting the king, or his government, or courts of justice.

Misprision of felony, however, in its ordinary sense, is a misdemeanour consisting in the knowledge or concealment of a felony committed by another, and is punishable by fine and imprisonment. (Burn’s Justice, title Felony.) We should add, that on the 23d July, 1833, a Royal Commission was issued for the purpose of digesting into one statute all the statutes and enactments touching crimes, and the trial and punishment thereof, and also of digesting into another statute all the provisions of the common or unwritten law touching the same, and for inquiring and reporting how far it might be expedient to combine both those statutes into one body of the criminal law, repealing all other statutory provisions, or how far it might be expedient to pass into a law the first mentioned statute only, and generally for inquiring and reporting as to the consolidation of the other branches of the existing statute law. The question of codification is discussed in the first report of the commissioners dated 24th June, 1834, which, after a very elaborate statement of the difficulties which the present uncertain state of the law presents to such an undertaking, expresses a confident opinion that a digest of the statute with the common law, into one criminal code, would tend greatly to the improvement of the jurisprudence of the country. The second report, dated 9th June, 1836, is devoted partly to the question of the defence of prisoners by counsel, (since authorized by the act 6th and 7th Will. IV., cap. 114,) and to that of the infliction of capital punishment. The commissioners think that the punishment of death ought to be confined to the crime of high treason, and to offences which consist in, or are aggravated by such acts of violence to the person as directly endanger human life, a list of which acts they subjoin. The third report, dated 10th March 1837, is specially devoted to the subject of juvenile offenders, and expresses the opinion of the commissioners, that it would not be advisable to make any distinction in the mode of trial between adult and juvenile offenders, except by increasing the summary jurisdiction of magistrates in the manner therein mentioned; and that the extension of such summary jurisdiction within certain limits, would be a safe and beneficial alteration of the law, and would tend to diminish juvenile crime.

The reader is referred to these reports for very valuable information and suggestions, in regard to the amendment and consolidation of the penal law of England, and in particular for a full explanation of the difficulties with which those important objects have been, and continue to be, surrounded, and which, without some technical knowledge, it is by no means easy to appreciate.
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