caution, to punish the crimes of its members, is not an arbitrary institution, nor does it originate in necessity only, but in the sentiments of the human heart, the existing relations of men in society, and has the full sanction of the laws of

nature.

The organ by which the right of punishing shall be exercised in government is a consideration of propriety, safety, and convenience. A slight attention to the subject will discover it to be a branch of the right of legislation and intimately connected with the duties of that department. Without the right of punishing for the violation of a law, the right of legislation would be perfectly nugatory.

There is a three-fold division of the right of punishment, or of the exercise of that right, corresponding with the general division of the powers of government. First, the decreeing of penalties for the breach of any law. This involves a consideration of the importance of the law to the interests of the state, and the means of preventing crimes, the true end of all punishments, and corresponds with the right of legislation. To that branch, therefore, it can alone be intrusted. Secondly, the application of the law to particular cases for the purpose of determining whether it has been violated and who is the offender. This is clearly the proper business of the judiciary. Thirdly, the execution of the sentence upon the criminal, which falls to the province of the executive. The right of punishment is, in practice, frequently limited only by the will of the legislature, and the decisions of the judiciary; but the laws of nature have not left it arbitrary. Those laws have assigned certain limits, beyond which the right ceases, and the exercise of the power becomes a crime against society. These limits are not, in every sense, permanent and invariable. It is universally true that the right is limited by the end of preventing crimes and securing obedience to the laws. It is also true, that the penalties, which, in one state of society and manners are adequate to that end may, in a different state, be wholly inadequate.

Not only the state of manners, but the principles of the government, affect the severity of punishment. Where the support of the reigning powers, without any regard to the good of

the people, is the sole end of every measure of state, fear, which is inculcated by the severity of punishment, is the sole principle of obedience. Such governments set limits neither to crimes, nor to the severity of punishments. No actions are considered to be criminal because they are injurious to the people, or against the laws of nature; but because they are supposed to be dangerous to the reigning power, and a contempt of its authority. In proportion as governments have ascended to natural principles and made the happiness of the people the end of their institutions, crimes and punishments have admitted of more definite limits. It has been proved and acknowledged, that, in a civil view, those actions only are criminal, which are injurious to the community at large, or to individuals, whose rights and happiness the community are bound to protect, and secure; that the prevention of crimes is the sole end of punishments, and that all beyond this is the spirit of revenge and wanton cruelty.

I repeat it, the sole end of punishment is, or ought to be the prevention of crimes. Under crimes, I comprehend, not only the doing of those things which are directly detrimental to the community, but the omission of those things which are necessary to its support and general happiness; for if man be a social being, it clearly follows that he is bound not only to forbear injuries to the society, but to contribute his equal share to its well-being. It is an obligation arising not from necessity merely, but an original, indispensable obligation.

We have seen that the Deity has been pleased, by the strongest and most intimate relation, the relation of cause and effect, to connect happiness with the virtuous actions of moral agents, misery with their vices. These are the rewards and punishments in the government of providence. To this system man, in the original constitution of his nature, is admirably adapted, by means of the moral faculty of which we have before treated, his perception of the moral right and wrong of his actions, his desire of the approbation of others, and a consequent dread of their censure; a consciousness when he has done right that he is deserving of their approbation, when wrong-of censure or punishment. To this constitution of nature, all civil laws and political institutions ought

to be adapted. Hence are to be derived the true principles of all penal laws and criminal jurisprudence,-principles which can alone produce and support a coincidence between the civil and moral obligation of those laws. Upon no other principles will punishments be perceived to be just; upon no other principles can they have a salutary effect on the life, on the manners of men, to promote the ends of civil society.

It is worthy of remark, that in the progress of society, no science has, in general, received so little improvement as the science of criminal jurisprudence.* It is true that the outrageous violence with which capital and other punishments were inflicted, has in some nations been abolished or greatly mitigated, but it may with equal truth, be observed, that among nations, who boast of the highest degree of refinement, the greatest degree of improvement in their civil policy, the number of capital punishments has been increased out of all proportion to the reform in point of cruelty. The British government, which in civil improvements, and the justice and humanity of its civil code, has gone beyond most of the European nations,—has proceeded with a degree of wantonness in the enactment of capital punishments. One hundred and sixty crimes, declared to be worthy of immediate death, hardly completes the murderous catalogue.

The following just and pointed observations not only on the inutility, but the injurious consequences of this multiplicity of capital offences, made some years ago by a British senator in the house of commons, ought to be carefully preserved and deeply fixed in the mind of every legislator." Whether hanging ever did, or can answer any good purpose, I doubt; but the cruel exhibition of every execution day, is a proof, that hanging carries no terror with it. And I am confident that every new sanguinary law operates as an encouragement to commit capital offences; for it is not the mode, but the certainty of the punishment that creates terror. What men know they must endure, they fear; what they think they may escape they

* The world is more indebted to the Marquis Beccaria for his little "Treatise on Crimes and Punishments" than to all other writers on the subject.

despise. The multiplicity of our hanging laws, has produced these two things; frequency of executions and frequent pardons. As hope is the first and greatest spring of action, if it was so, that out of twenty convicts one only was to be pardoned, the thief would say, "why may not I be that one?" But since, as our laws are actually administered, not one in twenty is executed, the thief acts on a chance of twenty to one in his favor; he acts on a fair and reasonable presumption of indemnity; and I verily believe, that the confident hope of indemnity is the cause of nineteen in twenty robberies that are committed."

Several causes have concurred to prevent any considerable improvement in the criminal code. Men appear often to entertain an idea of justice as of a physical being or power, something which physically exists, whereas, it is only the result of certain relations; civil justice results from the relations of men in civil society; beyond these, it has no relation nor even mental existence. This notion has done infinite mischief in the world. It has represented justice, as really offended in proportion to the degree of the crime committed, and inexorably demanding satisfaction by a certain determinate punishment to be inflicted on the offender; like the malevolent deities of some nations who are propitiated by human sacrifices only. By considering a satisfaction to justice as the principal end of punishment, and disregarding its utility to society, the safe and certain criterion of the justice and propriety of any class of civil or social actions, it has served to reconcile people, in other respects of a refined sensibility, to an excess of cruelty in the enacting and the execution of laws.

A punishment annexed to a crime is, by association, viewed in connexion with the crime, and often serves as a measure for the degree of its guilt, which arises only from its relation to society. When from any cause the perpetration of any particular species of crimes has become frequent, the minds of legislators are irritated against the perpetrators and against the crime. Determined to apply an effectual remedy they are

* Beccaria on Crimes and Punishments, Ch. 2.

too prone, without adverting to the cause of the evil, to enhance the penalty, thus augmenting the uncertainty of the punishment, which was perhaps before the most powerful cause.

It is, however, for the interest of humanity and a wise disposition of providence, that in a state of any considerable degree of refinement, sanguinary laws should always defeat the end of their institution. If the penalty imposed by law exceed the demerit of the crime in the estimation of the people, whose general semtiments are, in this case, the best criterion of what ought to have been done, the law is rarely executed. Humanity, whose dictates are more readily obeyed than the requisitions of such laws, is interested in the escape or acquittal of the criminal. When the severity of the punishment excites the compassion of the people, the effect of the punishment is more than lost. While they pity the criminal, they forget his crime, or diminish its guilt, and conceive an abhorrence of the law. If the criminal be detected and condemned, he is viewed as unfortunate, rather than guilty.

From an attention to the state of crimes in different societies we shall find, that in those governments whose legislators have swelled the list of capital offences and by applying the same ultimate punishment to crimes of very different grades have confounded all degrees of guilt, the same crimes are more frequently committed, than in those governments where the laws have been enacted with more mildness, and different degrees of guilt distinguished by different degrees of punishment. The punishment ought never to exceed, but to rather fall short of the demerit of the crime in the sentiments of the people. Where this is the case, humanity is engaged on the side of the law, and the punishment is rendered as certain as the perpetration of the crime. This adds a mild, but irresistible energy to the execution of the law. It is universally true, that certainty of punishment has a much more powerful effect than severity in the prevention of crimes. Indeed, the resentment and contempt of mankind, which always pursue the perpetrator of a crime, if not converted into compassion by the severity of the law, constitute a punishment of no inconsiderable efficacy.

Such is the right of government to punish, and such the principles which ought to be invariably pursued in the enact