PUNISHMENT. 



ample. A violent death appeared terrible in their dtfcrip- 

 tions, but we fee that it is the affair of a moment. It will 

 be ftiU lefs terrible to him, who, not cxpefting it, elcapes 

 almoll all the paiii.' Such is the fatal, though abfurd rea- 

 foning of men who are difpoied to commit crimes ; on 

 whom, the abufe of religion has more influence than religion 

 itfelf. 



How happy were mankind, fays tliis author, if laws were 

 now to be formed ; now that we fee on the thrones of Europe, 

 benevolent monaichs, friends to the virtues of peace, to 

 the arts and fciences, fathers of their people, thougli 

 crowned yet citizens ; the increafe of whofe authority aug- 

 ments the happinefs of their fubjefts, by deflroying tliat in- 

 termeSiate defpotifm, which intercepts the prayers of the 

 people, to the throne. If tiieie humane princes have fuf- 

 fered the old laws to fubfift, it is doubtlefs becaufe they are 

 deterred by the numberlefs obftacles, which oppofe tlie fub- 

 verfion of errors eilabliilied by the fanftion of many ages ; 

 and therefore every wife citizen will wi(h for the increafe of 

 their authority. 



It has long iince been obferved, fays Voltaire, to whom 

 the commentary on Beccaria's etfay is attributed, that a 

 man after he is hanged is good for nothing, and that punifh- 

 ments invented for the good of fociety, ought to be ufeful 

 to fociety. It is evident, that a fcore of ifout robbers, 

 condemned for life to fome public work, would ferve the 

 ftate in their puniihment, and that hanging them is a benefit 

 to nobody but the executioner. 



There have been fome judges, fays this writer, who were 

 paffionately fond of fpiiling human blood ; fuch was Jefferies 

 in England, and fuch in France was the man whom they 

 called Coupe-tete. Nature never intended fuch men for ma- 

 giftrates, but for executioners. 



As to the end, or final caufe of human punifhments, this 

 is not to be confidered as an atonement or expiation for the 

 crime committed, but as a precaution againil future offences 

 of the fame kind. This purpofe is accomplifhed in three 

 ways ; either by the amendment of the offender himfelf, 

 with a view to which all corporal punifhments, fines, and 

 temporary exile or imprlfonment are inflifted ; or bv de- 

 terring others by the dread of his ex:imple from committmg 

 fimila." offences, " ut poena (as Cicero expreffes it, pro Clu- 

 entio, 46) ad paucos, metiis ad omnes perveniat ;" or, lallly, 

 by depriving the party who offends and injures, of the 

 power to do future miichicf, which is effetled by either put- 

 ting him to death, or condemning him to perpetu.il confine- 

 ment, flavery, or exile. The method of inflicting punifh- 

 ment, however, ought always to be proportioned to the 

 particular purpofe it is meant to ferve, and by no means to 

 exceed it ; and therefore the pains of death, and perpetual 

 difability by exile, flavery, or iniprifonment, ought never 

 to be inflicted, but when the offender appears incorrigible. 



The -meajure of human punilhments muft be left to the 

 arbitration of the legiflature, which ftiouid inflitt fuch pe- 

 nalties as are warranted by the laws of nature and fociety, 

 and fuch as appear to be the bell calculated to anfwer the 

 end of precaution againfl future offences. Some have re- 

 ijommended, and highly extolled for its equity, the " lex 

 talionis," or law of retahation ; but judge Blackilone ob- 

 ferves, that this can never be in all cafes an adequate or per- 

 manent rule of judgment. Although there cannot be any 

 legular or determmate method of rating the quantity of 

 puniflimcnts for crimes, by any one uniform rule, applicable 

 10 all cafes, and without ultimately referring to the will 

 and difcrelion of the legiflative power ; yet there are fome 



feneral principles, deduced from the nature and circum- 

 aaces ci the crime, that may afford fome affiftauce in 

 9 



allotting to it an adequate punilTiment. One circumflance 

 that fcrves in fome meafure to determine the nature and de- 

 gree of punifliment regards the object of it ; for the more 

 dignified in refpedl of rank, charaCfir, and influence, the 

 obje£l of an injury is, fo much greater care fliould be 

 taken to prevent that iijury, and of courfe under this ag- 

 gravation the puniihment fliould be more fevere. Accord- 

 ingly treafon in confpiring tl.j king's death, is by the 

 Engliih law punilhed with greater rigour than even actually 

 killing any private fubjeft. Moreover, the violence of 

 paffion, or temptation may, in fome cafes, alleviate a crime ; 

 fuch is theft in cafe of hunger, contradiltinguiflied from the 

 fame crime committed through avarice, and to ferve the 

 purpofes of luxury. Homicide, in coiifequence of fuddcn 

 and violent refeiitmeiit, is lefs penal than upon cool delibe- 

 rate inahce. The age, education, and charafter of the 

 offender; the repetition (or otherwife) of the offence; the 

 time, the place, the company in which it was committed : 

 all thefe, and a thoufand other incidents, may aggravate or 

 extenuate the crime. Thus Demoilhenes (in his oration, 

 agaiidt Midias) finely works up the aggravations of the in- 

 fults he had received : " I was abufed," fays' he, " by my 

 enemy, in cold blood, out of malice, not by heat of wine. 

 in the morning, publicly, before itrangers as well as citizens ; 

 and that in the temple, whither the duty of my office called 

 me." 



Farther, as punifliments are chiefly intended for the pre- 

 vention of future crimes, thofe fhould be_moil fcverely pu- 

 nifhed, which are the moil deftruclive of the public fafety 

 and happinefs ; and, among crimes of an equal malignity, 

 thofe which a man has the moil frequent and eafy opportu- 

 nity of committing, which cannot be fo eafily guarded 

 againft as others, and which, therefore, the offender has the 

 itrongeil inducement to commit ; according to Cicero's ob- 

 fervation (Pro Sexto Rofcio, 40); " ea funt animadver- 

 tenda peccata maxime, qus diflicillime praecaventur." 



We may alfo obferve, that punifhments of unreafonable 

 feverity, efpecially when indifcriminately inflicted, have lefs 

 effeft in preventing crimes, and amending the manners of a 

 people, than fuch as are more mild or merciful in general, 

 and yet properly intermixed with due diilinclions of feverity. 

 Crimes, fays Beccarla, are more effectually prevented by the 

 certainty than tiie feverity of puniihment. The certainty of 

 a fmall punifliment will make a ilror.ger impreflion, than the 

 fear of one more fevere, if attended with the hopes of ef- 

 caping ; for it is the nature of mankind to be terrified at 

 the approach of the fmalleil inevitable evil, whilft hope, the 

 bell gift of heaven, hath the power of difpelling the appre- 

 henfion of a greater ; efpecially if fupported by examples 

 of impunity, which weaknefs or avance too frequently 

 afford. 



If punilhments be very fevere, men are naturally led to 

 the perpetration of other crimes, to avoid the punifliment 

 due to the firlt. The countries and times molt notorious 

 for feverity of puniftiments, were always thofe in which the 

 moft bloody and inhuman actions and the moit atrocious 

 crimes were committed ; for the hand of the legiflator and 

 the aflaffin were direfted by the fame fpirit of ferocity ; 

 which, on the throne, didtated laws of iron to flaves and 

 favages, and, in private, infUgated the fubjedt to facrifice 

 one tyrant to make room for another. 



In proportion as punifhments become more' cruel, the 

 minds of men, as a fluid rifes to the fame height with that 

 which furrounds it, grow hardened and infenfible; and the 

 force of the pafiions flill continuing, in the fpace of an 

 hundred years, the ivheei terrifies no more than formerly the 

 prifon. That a punifliment may produce the effect required, 



it 



