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ON PROPOSED IMPROVEMENTS IN CRIMINAL

LAW.

In the course of the last century, a very general sensation was created throughout Europe against the severity and injustice of its criminal law. In exciting this feeling, Montesquieu and Voltaire led the way with distinguished ability and success; but it was in a small state and under a despotic government, that this subject was opened to its full extent, in the celebrated work of the Marquis Beccaria. By these writings not only a great change of opinion, but great improvements in criminal legislation, were effected in many countries of Europe. The use of torture, notwithstanding it found for a time, like all existing abuses, its supporters and its advocates,* was generally abolished.f The justice, or expediency, of capital

* In the Abbe Tourreil, and in Spain, in an ecclesiastic named Castro, whose book, however, only excited that indigo nation which it so well merited. + “The king of Prussia set the example of abolishing it in

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punishments, even 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 community.* The application of the punishment of death to minor offences was combated with still greater success, and a willingness was evinced by almost every nation in Europe, to avail itself of the information that had thus been

Germany, and the duke of Tuscany in Italy; and the example was soon followed in Saxony and Poland. In Geneva it has not been used since the year 1756, and it was totally abolished in Sweden in 1773. Maria Theresa tacitly suppressed, and the late Emperor Joseph formally prohibited it in the Austrian dominions. Louis XVI. about the same time restricted its exercise in France. The revolution has utterly abolished it in that country, as well as in Avignon, where it was formerly exercised with so much severity, that the goaler there informed Mr. Howard in 1786, that “ he had seen drops of blood mixed with the sweat on the breasts of some who had suffered the torture." -v. Bradford's Enquiry on the Punishment of Death. Note i.

* Particularly by the Grand Duke of Tuscany, who in 1786, abolished the punishment of death throughout his domipions. “ He had read and admired the Marquis of Beccaria, and determined to try the effects of his plan. He put a stop to all capital punishments, even for the greatest crimes, and the consequences have convinced the world of its wholesomeness.”—Gen. Lee's Mem. p. 53. The introduction to the Edict is in fact an abridgment of the principles of Beccaria.

given, and to modify its institutions upon more humane and enlightened principles.*

The most prominent fact, and which could not fail to strike the attention of every

writer on this subject, was, that in the application of capital punishments to a great variety of offences, different in their nature and degree, it was impossible for the administrators of justice to apply the threatened punishments with the indiscriminating rigour required by law; and consequently, that a considerable number, and perhaps a great majority of offenders escaped without either punishment or correction. 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, 1st. That punishments should be proportioned to offences, and 2ndly, that when justly incurred, they should be invariably inflicted; and the demonstration of these maxims, and the inculcation of the necessity of their adoption, form the great and leading

* The criminal and civil code of Russia underwent a thorough reform under the celebrated Instructions” of the late Empress. At Vienna a similar alteration took place in 1785, and Sweden, Denmark, and other countries, have made important improvements in the system of their penal laws.

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feature of almost every work which has hitherto. been published on the subject.

Favourable, however, to the interests of the community as such a system may appear, and earnestly as its more general introduction has been recommended, it may justly be doubted whether, if it could be carried into effect, it would be attended with the advantages expected from it. To define certain crimes by the degree of their enormity, to apply to each a punishment proportioned to the offence, and to provide that such punishment shall be invariably inflicted, seems to be the perfection of the plan. But it ought not to be forgotten, that these inflictions are not to take place on inert matter, but on a sentient and intelligent being, capable, not merely of bodily suffering, but endowed with feelings of remorse, sorrow, penitence, and shame, which

vary

in

every individual, and are implanted by nature in the human bosom, for the wisest and most important purposes. Disregarding however the effect produced on the patient, the allotted punishment proceeds, equally insensible to the obstinate defiance of hardened guilt, or the agonies and intreaties of the deepest contrition ; and having performed the same invariable operation on every person subjected to its influence, dismisses them alike, either to persevere in, or reform their conduct, according to the strength of their constitution, the character of their disposition, or the nature of the circumstances in which they are placed.

Such, it is apparent, would be the effect of a system which should proportion the punishment to the crime, and require its invariable infliction ; if, indeed, we can for a moment suppose that such a system could ever be established; but when from regarding it in a general view, we attempt to reduce it into practice, we find no certain relation or coincidence between crime and punishment, upon which the opinions of mankind can be expected to agree. Thus, the crime of theft has in this country been punished by whipping, by im. prisonment, 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 seventh Chapter of Mr. Bentham's Treatise, intitled: "Theorie des Peines," as published by Mr. Dumont, is on The Analogy between Punishments and Crimes, in which he conceives that the means adopted in the perpetration of a crime might be applied to its punishment. Thus, a person who destroys or injures another by fire, water, poison, &c. might be punished by a similar operation. But it is evident that any attempt to establish such a principle would be to recur to the rudest practices of the most uncivilized nations; and indeed neither Mr. Bentham, nor his excellent and learned

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