Part 2 (1/2)
4. _The want of a Public Prosecutor for the Crown, in all criminal cases, for the purpose of preventing fraud, delay and expence in the administration of Justice._
5. _The want of a more correct and regular System, for the purpose of obtaining the fullest and most authentic information, to avoid deceptions in the obtaining of pardons._
6. _The deficiency of the System of the_ Hulks.
7. _The want of an improved System with regard to the arrangements and disposal of Convicts--destined for hard labour or for transportation._
8. _The want of national_ Penitentiary Houses, _for the punishment and reformation of certain cla.s.ses of Convicts._
9. _The want of a more solemn mode of conducting Executions; whenever such dreadful examples are necessary for the furtherance of Public Justice._
Having thus explained the general features of the actually existing _Crimes_, and their probable causes, we shall in the next place proceed to some considerations on the present principles of _Punishment_ in this Country, as compared with those in other Nations and ages. It will then be requisite to enter into particular and minute details on both these subjects; and to offer some suggestions for the introduction of new and applicable laws to be administered with purity under a correct and energetic System of Police; which may be, in some degree, effectual in guarding the Public against those increasing and multifarious injuries and dangers, which are universally felt and lamented.
CHAP. II.
_Of Punishments in general.--The mode of ascertaining the degrees of Punishment.--The objects to be considered in inflicting Punishments--namely, Amendment--Example--and Retribution.--The Punishment of Death has little effect on hardened Offenders.--Examples of convicts exhibited in servile employments would make a greater impression.--Towards the rendering criminal laws perfect, Prevention ought to be the great object of the Legislature.--General Rules suggested for attaining this object, with ill.u.s.trations.--The severity of our laws with respect to Punishments--not reconcileable to the principles of morality, and a free government--calculated in their operation to debase the human character.--General Reflections on the Punishments authorised by the English Law.--The disproportion of Punishments, exemplified in the case of an a.s.sault, opposed to a larceny.--In seduction and adultery, which are not punishable as criminal offences.--The laws severe in the extreme in political offences, while they are lax and defective with regard to moral Crimes.--The necessity of enforcing the observance of religious and moral Virtue by lesser Punishments.--General Reflections applicable to public and private Crimes.--The dangers arising from the progress of immorality to the safety of the State.--The leading offences made capital by the laws of England considered, with the Punishment allotted to each; compared with, and ill.u.s.trated by, the custom of other countries, in similar cases, both ancient and modern: namely, High Treason--Pet.i.t Treason:--Felonies against Life, viz. Murder, Manslaughter, Misadventure, and Self-defence:--against the Body, comprehending Sodomy, Rape, Forcible Marriage, Polygamy, and Mayhem.--Against Goods or Property, comprehending Simple Larceny, Mixt Larceny, and Piracy,--and against the Habitation, comprehending Arson and Burglary.--Concluding Reflections relative to the severity of the Laws, and their imperfections with regard to Punishment--The new Code of the_ Emperor JOSEPH the Second, _shortly detailed.--Reflections thereon._
Punishment, (says a learned and respectable author) _is an evil which a delinquent suffers, unwillingly, by the order of a Judge or Magistrate; on account of some act done which the Law prohibits, or something omitted which the Law enjoins._
All Punishment should be proportioned to the nature of the offence committed; and the Legislature, in adjusting Punishment with a view to the public good, ought, according to the dictates of sound reason, to act on a comparison of the Crime under consideration, with other offences injurious to Society: and thus by comparing one offence with another, to form a scale, or gradation, of Punishments, as nearly as possible consistent with the strict rules of distributive justice.[9]
[Footnote 9: Beccaria, or Crimes and Punishments, Cap. 6.]
It is the triumph of Liberty, says the great Montesquieu, when the criminal laws proportion punishments to the particular nature of each offence.--It may be further added, that when this is the case, it is also the triumph of Reason.
In order to ascertain in what degree the Public is injured or endangered by any crime, it is necessary to weigh well and dispa.s.sionately the nature of the offence, as it affects the Community.--It is through this medium, that Treason and Rebellion are discovered to be higher and more dangerous offences than breaches of the peace by riotous a.s.semblies; as such riotous meetings are in like manner considered as more criminal than a private a.s.sault.
In punis.h.i.+ng delinquents, two objects ought to be invariably kept in view.--
1. The Amendment of the Delinquent.
2. The Example afforded to others.
_To which may be added, in certain cases_,
3. Retribution to the party injured.
If we attend to Reason, the _Mistress of all Law_, she will convince us that it is both unjust and injurious to Society to inflict Death, except for the highest offences, and in cases where the offender appears to be incorrigible.
Wherever the amendment of a delinquent is in view, it is clear that his punishment cannot extend to death: If expiating an offence by the loss of life is to be (as it certainly is at present) justified by the necessity of making examples for the purpose of preventing crimes, it is evident that the present System has not had that effect, since they are by no means diminished; and since even the dread of this Punishment, has, under present circ.u.mstances, so little effect upon guilty a.s.sociates, that it is no uncommon thing for these hardened offenders to be engaged in new acts of theft, at the very moment their companions in iniquity are launching in their very presence into eternity.
The minds of offenders, long inured to the practice of criminal pursuits, are by no means beneficially affected by the punishment of Death, which they are taught to consider as nothing but a momentary paroxysm which ends all their distress at once; nay even as a relief, which many of them, grown desperate, look upon with a species of indifference, bordering on a desire to meet that fate, which puts an end to the various distresses and anxieties attendant on a life of criminality.
The effect of capital punishments, in the manner they are now conducted, therefore, as relates to example, appears to be much less than has been generally imagined.
Examples would probably have much greater force, even on those who at present appear dead to shame and the stigma of infamy, were convicts exhibited day after day, to their companions, occupied in mean and servile employments in Penitentiary Houses, or on the highways, ca.n.a.ls, mines, or public works.--It is in this way only that there is the least chance of making retribution to the parties whom they have injured; or of reimbursing the State, for the unavoidable expence which their evil pursuits have occasioned.
Towards accomplis.h.i.+ng the desirable object of perfection in a criminal code, every wise Legislature will have it in contemplation rather to prevent than to punish crimes; that in the chastis.e.m.e.nt given, the delinquent may be restored to Society as an useful member.