PUNISHMENT. 



melanctioly narratives of Mr. C(illin«;, wc could certainly 

 nowhere fo well be fiiitcd as in the defcriplions which ihs 

 French and Englifh travelU'rs have given us of the convifls 

 in New York and Piiiladelphia. 



5. Capital pnnifliments compofe the fifth clals. This 

 clals confiils cither oi fimply inflicVing death with the lealt 

 poflible degree of fiifFering, or in accompanying the dellruc- 

 tion of life with torments. The latter method, at one period 

 univerfally prevalent, and ftiil known in nioft coniitries, is 

 happily almofl abolifhed in the two moil civili/.ed nations. 

 In France, the Code Napoleon allowed it only in the cafes of 

 parricide, and attempts againft the fovereign's life, where 

 the addition made to the punifliment of death is cutting off 

 the right hand. In England, it is only in the cafe of high 

 treafon that fuch augmentations are allowed : the punifh- 

 ment of the law is no doubt barbarous m the extreme, but 

 in praftice it is always remitted. All fuch cruelties have 

 the eft"e<A of infpiring pity in the fpeftators towards the 

 criminal, and of rendering criminals more hardened and 

 favage. 



The ingenious author of the critique on Mr. Bentham's 

 theory, to whofe analyiis of the work we are fo much in- 

 debted in the compilation of this article, agrees with him in 

 his objeftions to Beccaria, who maintains that a punifhme nt 

 of longer duration is more terrible to the fpeftator. Clearly 

 there is none fo dreadful as death. M. Dumont adds, 

 that its apparent fuffering is greater than its real, which 

 applies only to the pains of it. On the other hand, it ex- 

 ceeds all others in fonie material defefts ; not only is it ex- 

 penfive, and beginning to become unpopular ; it is quite 

 irremiflible, and it is in the higheit degree unequal, and in- 

 capable of divifion or apportionment. A very fatisfaftory 

 llatement is given under this head, of the evil tendency of 

 frequent executions, of the kind of reafoning by which of- 

 fenders at the moment of temptation get rid of the fear of 

 death, and efpecially of the wide difference between cjicoun- 

 tering certain deftruftion, and yielding to impulfes which 

 may lead to it. The evils arif.ng from its being irremiflible 

 are alfo ably expounded ; yet we think the author has 

 ■ncglefted to confider how much of its horror conliils in this 

 quality. It is manifeil that no other punifhment can utterly 

 exclude hope. In comparing capital with other punifli- 

 ments, our author is difpofed to give the latter the pre- 

 terence, almoft to the exclufion of the former ; chiefly be- 

 caufe, however exemplary to men in general the infliftion 

 of death may be, and how deep foever the impreffion it 

 makes on their minds, it has not the fame terrors for the 

 clafs of men mofl likely to commit the worll offences, vio- 

 lent fpirits and hardened delinquents. That its range fhould 

 be extremely limited, we are willing to admit ; but we 

 differ from him in the pofition, that for this clafs of men, 

 perpetual confinement to hard labour would have more 

 terrors than death. The total extinftion of life, without 

 chance of efcape, pardon, or mitigation, ought Itill to be 

 denounced againft the worfl offences ; and, by being con- 

 fined to thefe, will unqueftionably become doubly terrible. 

 The evils arifing collaterally from the abufe of this punifh- 

 ment, are fo ably pointed out by fir Samuel Romilly, that 

 tiur author abridges a part of the treatife before us, by re- 

 ferring to his traft. 



The other great divifion of punifhments in Mr. Ben- 

 tham's theory, confifts more peculiarly in privation. Thefe 

 may be arranged in three clafles, as they iwpofe a for- 

 feiture of r^^a/^j/;on, of /iro/ifr/y, or of £-»n(yrV!on. I. Punifh- 

 ments which affeft a man's reputatioji confifl of appeals 

 to public opinion, and are thofe meafures which the law- 

 giver takes with refpeft to Iiim, for direfting that opinion 



Vo/.. XXIX. 



againfl him. The lawgiver may infli<it punifhments of this 

 kind, or rather may expofe liie offender to have them in- 

 flifted, either by fimply iknouncitig, with the authority 

 belonging to his funilions, that certain afts fhall be deemed 

 infamous, or by treating the particular offender jrW/rw//;' in 

 a certain way. The 1 itter is the mode ufed in modem 

 times ; and it is praftilid in different ways ; by piihUcatioti of 

 the offence; — by judicial admonition ; — by inflifting^un//I5- 

 minls of the other clafles, corporal as well as privative, thf^ 

 immediate objeft of which is not the deftruftion of repu- 

 tation ; — by inflifting what may be termed quafi-corpcral 

 punifhments, the fole objeft of which is infamy ; — by de- 

 gradation, or depriving the offender of his rank, natural or 

 conventional ; — by dfcrediting him, or preventing his tefli- 

 mony from being received. 2. The defcription of punifh- 

 ments affefting property cpnfifls of thofe which zre pecuniary, 

 and which are quafi-pecur.iary, as confifcation of lands, &c. 

 3. The forfeiture of condition, or fatus, though a clafs of 

 great extent, theoretically fpeaking, is in pra6tice reduced 

 within narrow limits. Marriage may be difiblved ; children 

 may be ballardized ; blood may be corrupted ; the diflTerent 

 kinds of trull may be taken away ; a perfon may be re- 

 duced to flavery ; a community may be deprived of its 

 rights and privileges. Outlawry may alfo be referred to 

 this head. 



There are other kinds of inflidlion, which every found 

 principle teaches us to avoid where it is poffible, and to 

 diminifh as much as poffible, where, from the defe6ls of all 

 human contrivances, they inevitably mingle themfelves with 

 the legitimate modes of punifhment. Our author's fyflem 

 arranges them in two clafles ; thofe which are mifpLued, or 

 which fall upon other perfons than the offender ; and thofe 

 which are complicated, or prefent neither to the legiflator, 

 the judge, the party, nor the public, any fixed and definite 

 idea. Thofe punifhments that are mifplaccd, in the proper 

 ufe of the term, or which the legiflator enadls with the 

 intention of punifhing another perfon than the ofi^ender, 

 either along with hun, or in his place, confifl of four 

 kinds; viz. vicarious, where the offender efcapes ; — tranf.tii'c, 

 where an innocent perfon is purpofely puiiifhed who is con- 

 nefted with the offender ; — coUeSive, where a body of 

 innocent perfons fuffer, in the prefumption of the guilty 

 being among them ; — and fortuitous, where an innocent 

 perfon fuffers as well as the offender, though unconnected 

 v/ith him. The only inilance of vicarious punifhments is 

 that inrticltd upon, the families and creditors of fuicides by 

 the law of England. This, hke all other abfurd and ur.- 

 jufl laws, is evaded, in almoft every inilance, by perjury, 

 and the exercife of difcretion in a fovereign. The example 

 given of tranfitive punifhment is the corruption of blood, 

 the abfurdity of which is ably expofed. The cKlef inflances 

 of colleSive punifhments are thofe in which corporations are 

 punilhed for the faults of certain individual corporations j 

 a proceeding which can never be juflified. The well- 

 known examples of fortuitous pifnifhments are taken from 

 the law of England. The moll notable is the forfeiture 

 and efcheat of freehold property, in cafes of attainder of 

 treafon and felony, where the confifcation relates back 

 to the commiflion of the offence, and all mefne conveyances 

 are avoided ; fo that a man may commit a fecret crime, antj 

 fell his eflate to an ignorant and innocent purchaier, ii; 

 whofe hands the crown or the lord afterwards feizes the 

 eflate upon the vendar's attainder ; and as his goods and 

 chattels are forfeited upon conviftion, the only fund vi 

 compenfation is gone alfo. Deodands are another inflance 

 of fimilar injuftice ; and the punifhment of incapacitating a 

 perfon from iriving evidence, is manifeftly one which mav 

 ^ C ftnke 



