PUNISHMENT. 



it is fufficient that the ewl it occafions fhould exceed the 

 ^ood cxpedli/d from the crime ; iiichiding in the calculation 

 the certainty of the puniflimcnt, and tlie privation of the 

 expected advantage. All (everity beyond this is fuper- 

 iluous, and therefore tyrannical. 



There are yet tv^'O other confequences of cruel punifli- 

 ments, which counterait the purpofe of tlieir inllitution, 

 which was, to prevent crimes. The Jirfl arifes from the 

 impoflibility of ellablifhing an exa(ft proportion between the 

 crime and punirtuncnt, for though ingenious cruelty hath 

 greatly multiplied the variety of torments, yet the human 

 frame can iuffer only to a certain degree, beyond which it 

 is impoflible to proceed, be the enormity of the crime ever 

 fo great. The fccond confequence is impunity. Human 

 nature is limited no Icfs in evil than in good. Exceflive 

 barbarity can never be more than temporary ; it being im- 

 poflible that it fliould be fupported by a permanent fyftem 

 of legiflation; for if the laws be too cruel they mull be al- 

 tered, or anarchy and impunity will fucceed. The ex- 

 ceflive feverity of laws (fays Montefquieu, Sp. of Laws, 

 b. 6. C. 13.) hinders their execution ; when the punifiiment 

 furpaffes all meaiure, the public will frequently, out of hu- 

 manity, prefer impunity to it. 



Thus alfo the flatute I Mar. ft. i.e. I. recites in its 

 preamble, " that the ftate of every king confiils more af- 

 luredly in the love of the fubjedl towards their prince, than 

 in the dread of laws made with rigorous pains ; and that 

 laws made for the preiervation of the commonwealth with- 

 out gre;it penalties, are more often obeyed and kept, than 

 laws made with extreme punilhments." Happy had it been 

 for the nation, fays judge Blackftone, if the fubfcquent 

 praftice of that deluded princefs, in matters of religion, 

 had been correfpondent to thefe fentiments of herfelf and 

 parliament, in matters of Hate and government. It may be 

 farther obferved, that fanguniary laws are a bad fymptom 

 of the diltemper of any ihite, or at leaft of its weak con- 

 Ititution. The laws of the Roman kings, and the twelve 

 tables of the decemvirs, were full of cruel punifhments : 

 the Porcian law, which exempted all citizens from fentence 

 of death, filently abrogated them all. At this period the 

 republic flouriflied : under the emperors fevere puniihments 

 were revived ; and then the empire fell. 



We may further add, that it is abfurd and impolitic to 

 apply the fame punifliment to crimes of different malignity. 

 Befides, a multitude of fanguiimry laws (befides the doubt 

 that may be entertained conccrnmg the right of making 

 them) proves likevvife a manifeft defeft either in the wifdom 

 of the legiflative, or the llrength of the executive power. 

 Although it be much eafier to extirpate than to amend 

 mankind ; yet that magiftrate mult be elleemed both a weak 

 and a cruel furgeon, who cuts oft" every limb, which through 

 ignorance or indolence he will not attempt to cure. Bec- 

 caria therefore propofes to form in every Hate a fcale of 

 crimes, with a correfponding fcale of puniihments, defcend- 

 ing from the greatell to the lead ; but if this idea be deemed 

 romantic, a wife legiilator will at lead mark the principal 

 divifions, and not affign penalties of the firft degree to 

 offences of an inferior rank. When men fee no dillinftion 

 made in the nature and gradations of punifhment, the gene- 

 rality will be led to conclude, there is no diftinftion in the 

 guilt. Much as we may be difpofed to admire and extol 

 the excellence of the Engliih law in a variety of refpefts, 

 yet none can otherwife than regret the frequency of its capital 

 puniihments ; mfliiled by a multitude of fuccelhve and in- 

 dependent ilatutes, upon crimes very different in their 

 natures ; and we cannot forbear paying our tribute of re- 

 Ipeft to fir Samuel Romilly, whofe talents and character 



far exceed our praife, and other legiflators, who arc laudably 

 exerting themfelves in fimplifying and mitigating our penal 

 code. 



It is a melancholy truth, fays judge Blackftone, that 

 among the variety of aftions, which men are daily liable 

 to commit, no lefs than 160 have been declared by aft of 

 parliament to be felonies without benefit of clergy ; or in 

 other words, to be worthy of inftant death. So dreadful 

 a bit, inftcad of diminilhing, increafes the number of 

 offenders. The injured, through compaflion, will often for- 

 bear to profecute : juries, through compaflion, will fome- 

 times forget their oaths, and either acquit the guilty or 

 mitigate the nature of the offence ; and judges, through 

 compaflion, will refpite one half of the coiividts, and re- 

 commend them to the royal mercy. Among fo many 

 chances of efcaping, the ready and hardened offender over- 

 looks the multitude that iuffer ; he boldly engages in fome 

 defpcratc attempt, to reheve his wants or fupply his vices ; 

 and if, unexpectedly, the hand of juitice overtakes him, he 

 deems himfelf peculiarly unfortunate, in falling at laft a 

 facrifice to thofe laws, which long impunity has taught him 

 to contemn. 



Beccaria, whofe excellent effay we have often cited in 

 this article, obferves, that the more immediately after the 

 commiflion of a crime, a puniftiment is inflidted, the more 

 juil and ufeful it will be. It will be more juit, becaufe it 

 fpares the criminal the cruel and fupcrfluous torment of 

 uncertainty, which increafes in proportion to the Itrength 

 of his imaginatioH, and the fenfe of his weaknefs ; and be- 

 caufe the privation of liberty, being a punilhment, ought 

 to be inflicted before condemnation, but for as ihort a time 

 as poflible. Imprifonment, he fays, being only the means 

 of fecuring the perfon of the accufcd, until he be tried, 

 condemned, or acquitted, ought not only to be of as ffiort 

 duration, but attended with as little feverity as poflible. 

 The time ftiould be determined by the necefTary preparation 

 for the trial, and the right of priority in the oldelt pri- 

 foners. The confinement ought not to be clofer than is 

 requifite to prevent his flight, or his concealing the proofs 

 of the crime ; and the trial fliould be condudted with all 

 poflible expedition. Can there be a more cruel contraft 

 than that between the indolence of a judge, and the pain- 

 ful anxiety of the accnfcd ; the comforts and pleafures of 

 an infenfible magiitrate, and the filth and mifery of the pri- 

 foner ? In general, " The degree of the punilfiment, and 

 the confequences of a crime, ought to be fo contrived, as 

 to have the greatelt poflible cfff dt on others, with the leaft 

 poflible pain to the delinquent." If there be any fociety 

 in which this is not a fundam.ental principle, it is an un- 

 lawful fociety ; for mankind, by their union, originally 

 intended to fubjeft themfelves to the leaft evils poflible. 



An immediate puniftiment is more ufeful ; becaufe the 

 fmaller interval of time between the puniftiment and the 

 crime, the ftronger and more Lifting will be the aflbciation 

 of the two ideas of crime and puiiyljiiient ; fo that they may 

 be confidered, one as the cauie, and the other as the un- 

 avoidable and iieceffary effett. 



It is, then, of the greatcft importance, that the punifh- 

 ment fliould fucceed the crime as immediately as polTible, 

 if we intend, that in the rude minds of the multitude, the 

 feducing pifture of the advantage avifing from the crime, 

 fhould inllantly awake the attendant idea of punilhment. 

 Delaying the puniftiment ferves only to feparate thefe two 

 ideas ; and thus affedts the minds of the fpedtators rather 

 as being a terrible fight, than the neceffary confequence of 

 a crime ; the horror of which fhould contribute to heighten 

 the idea of the puniftiment. 



There 



