straints are in being, before we can proceed to pair crimes and penalties together by any scheme of mathematical ratio. The primary social restraints which exist independently of law, and contain in them the best spirit of society, will always deserve to have the appeal first made to them, wherever they can be supposed to act with any force at all; and to have their paramount value ac knowledged on the face of the statute book; first, by its declining to take the cause out of their cognizance; or next, by shewing itself unwilling to stigmatize the failure of their authority, by tendering in their place the grosser and more shocking kinds of punishment. And as laws, when they are once made, ought to be executed with unrelenting impartiality between man and man, it seems the more necessary to provide in making them, not to tarnish the better orders and motives of society. On this account, however we may detest the guardian who defrauds his ward, or the governor who plunders a province, we should be sorry to see them tried under a statute of larceny; or read their names among the convicts sentenced to hard labour on board the hulks, or in a penitentiary house. But we have been opposing an idea of criminal law concerning which we are not certain whether it be really adopted by the author, or only employed by him as an argumentum ad hominem, in a turn of his controversy with Dr. Paley, whose whole doctrine on crimes and punishments he has endeavoured to refute. It may be officious, and not perfectly safe for us to step in between two such disputants, and try to make their differences appear not quite so great as one of them might lead us to imagine, by the very exact and elaborate refutation of his opponent, which he has attempted and yet only to hint a belief of this kind would be less respectful than to state the grounds of it: which we shall therefore do, as briefly as we can. Dr. Paley is the advocate of a system which assigns capital punishments to many kinds of offences, but inflicts it only upon a few examples of each kind.' In this view he includes the great body of our capital statutes collectively; many of which, or rather most of them were, at the time when he wrote, and still continue to be executed, frequently enough to make the dread of the law very sensibly felt. This is true, not only of crimes the most atrocious, as murders, rapes, burning of houses, and forgeries; but also of sheepstealing, horsestealing, burglaries, and highway robberies, which are punished with death in a number of instances sufficient for an operative example. What is the kind of proportion, we can learn only by a rude estimate, of which the elements are, that Moral Philosophy, book vi. c. 9. out out of 528 persons capitally convicted for crimes of every description, about an eighth suffered the sentence; but since there are included in this account the convictions for larceny, which probably made up half of the whole, whereas only one execution for larceny took place; it follows that the grants of mercy for other crimes must have been in a much lower proportion than that general average would indicate, and perhaps did not exceed three cases out of four. The whole balance of the calculation is deranged by the single article of the larcenies being included; on one side they double the convictions, while on the fatal side of the account there is only a unit to be added for them. Now had the question been put to Dr. Paley, whether he would defend a statute which creates a capital theft, with the condition of the sentence being almost universally remitted; it is clear from the whole tenour of his principles that he would have given his voice for the repeal of that mockery of legal terror. In his system there was some moderate proportion between the frequency of executing, and remitting the law. The fact as he took it and has expressed it, supposes the ratio to be one to ten: which, notwithstanding the confidence of adventurers in crime, will not make such a tempting lottery,' as every one must allow is now open for speculators upon the property of shops and dwelling-houses. Dr. Paley's work was written about thirty years ago, when the sentence of the law was much more steadily inflicted, even upon the larcenies in question, than it is at the present day; and by referring to his expressions, which are of this sort,- By this expedient, few actually suffer death, whilst the dread and danger of it hang over the crimes of many.-The tenderness of the law cannot be taken advantage of The life of the subject is spared as far as the purposes of restraint and intimidation permit;' -we may be satisfied he never meant that crimes which are committed every day, should be intimidated by a threat to be put in force once in six or seven years. In short, he defends sanguinary statutes, as useful, according to a certain standard of mixed severity and relaxation which he had in his mind when he wrote; that standard cannot be pretended to exist in the present argument--the conclusion is undeniable, that his authority is so far from being opposed to the immediate motion which Sir S. Romilly was about to make in parliament, that it might fairly have been quoted in favour of it. But on the extent of discretionary power, in general, which ought to be reserved to a criminal court, these two authors differ beyond all hope of reconciliation. Dr. Paley had no conception of a dispensing power which was to contravene a statute: but he has taken the side of latitude; as Sir S. Romilly does of strictness. The The one would make the judge the intuitive arbitrator of the law. The other would make the legislature the virtual judge; or to use his own forcible language, the law should be the rule; the relaxation of it, the exception. Upon the abstract question we feel little doubt in embracing it as a safer principle to narrow rather than to enlarge the commission of a judge, and to frame the laws in such a way that they may be, not with literal, but substantial exactness, a known, steady and immutable rule. A loose administration of law contradicts the first notions we have of justice, which no man ever thought of but as something uniform and fixed. Take this character from the law, and however it may inspire dread, it cer tainly will not command respect. At the same time, for every purpose of practical improvement, we should think it the best policy to put the question, both as to discretionary power, and every other arrangement, on each measure, step by step: otherwise the best general principles may only mislead us, as none stumble oftener than those who are constantly looking at the stars. It was no longer ago than the year 1808 that the offence of taking privately from the person above the value of twelvepence was punishable with death. So it was before the conquest; only there was a ransom, and he who could pay it saved his life. But in the time of Henry I. it was made strictly capital, and in the reign of Elizabeth debarred the benefit of clergy; and then neither ransom nor learning would do. During many a reign, and after the value of that sum was shrunk to nothing, we continued in love with the old Saxon denomination, and men were executed according to those antediluvian comparisons of life against money, or saved by the sovereign mercy of the court. *Sir Henry Spelman had justly complained, that while every thing else was risen in its nominal value, and become dearer, the life of man had continually grown cheaper. Still we adhered to the constitutions of Athelstan, till Sir S. Romilly had the courage to make a stand against him, and obtained a repeal of his life-appraisement. But it must be observed also, to the honour of Dr. Paley, that he has written most forcibly in behalf of the same reform. He has the merit of having laid his finger upon the very law at which Sir S. Romilly began his work of improvement; and as we have had to remark upon the opinions in which these two distinguished persons differ, our readers may not be sorry to know that there are also some points of agreement between them. The question on the necessity of capital punishment in general. is by no means involved in the legislative measure which this *Blackstone, book iv. 17. pam phlet phlet was intended to introduce and recommend. The laws which make certain kinds of small theft death, but are not executed, it may be fit to repeal simply on the ground of their non-execution, or of their excessive and disproportioned rigour. But the clearest reasons for revising such laws are placed at an immeasurable distance from the perils of that vast speculation, whether death might not be left out of the penal code altogether. The author has not declared himself in any positive terms upon this bold theory, nor given any cause to believe, as far as we can see, that he is a convert to it. The avowal of such a theory would certainly have created a greater opposition to the measure he had in hand; and therefore his silence may pass for caution with those who like to improve to the utmost every circumstance in a debate, and find more meaning in a speech or pamphlet than lies open to view. But we frankly own that this pamphlet does not bring the subject before us; a few ambiguous intimations in it of a leaning towards a milder system of penal law, may only be expressive of that humane feeling which will prompt many to indulge a wish for more than they seriously think possible to be done in lessening the ills of life. This is one of the cheap gratifications of every good mind, and of the wisest too, before it has strictly compared its ends and means together. Yet, since the subject has been started, and in connexion with the pamphlet, both by those who favoured the bills to which it was a prelude, and by those who were adverse to them, we shall not digress very far, if we propose a few hasty observations upon it. They who speak as if they were for trying the experiment of a bloodless code of laws; if they should feel any scruple in taking the hazard of the theory upon their own wisdom, may avail themselves. of some great names, Beccaria, Voltaire, and the Empress Catherine, as authorities for it. They are all foreigners, and perhaps there is a vulgar taste in many of our speculators at home to admire the wisdom of other countries, as we do their fashions; while the corps who have to officiate in the institutions of their country, carry their prejudices as far the other way. The right method would be to take foreign examples and opinions, as hints to be consulted, with this specific caution, that however strong in the general principles of reason, a stranger may seem to be, the case of our own country is not before him. 'The Marquis Beccaria argues thus: The sovereign power in the magistrate or laws is composed of those portions of personal liberty which the individual gives up to the state, that he may live under it he makes the best bargain he can, and sacrifices only the smallest portion of his stock. The sovereign therefore can have no right over the life of a citizen-a right we may be sure he never : parted parted with. Besides, the citizen has no right over his own life, and therefore cannot, if he wished, give it to another.'* The subtilty of this argument may perhaps entangle those who yet would never be governed by it. When laws are really to be made, we hope that statesmen will follow their unphilosophical sense, in making them at once merciful and effective; and that they will employ the obvious means to counteract crimes, without waiting to know whether those means are included in some clause of the surrender made to the public in the original compact-a compact which we highly revere, though we have never been able to interpret more than two or three of the leading articles contained in it. But there is a fault in the argument of the humane philosopher which vitiates it even as an exercise of ingenious speculation. When men are supposed to negociate originally with the state, they do it as innocent persons; they surrender something, to obtain, what? protection as honest men, certainly; not licence to do wrong. Were they making a treaty for theft and murder, the state would raise its demands upon them, far beyond the minime porzioni; it would hardly admit them to treat except with a cord about their neck; or to speak more correctly, it could hold no correspondence with them in that character. In a word, crimes cannot be favoured in the conditions of a compact, the two parties in which are leagued together expressly against crimes: and if they are united for a just purpose, the power and discretion of the confederacy are justly exerted to obtain it. His lively commentator (Monsieur Voltaire) writes upon the subject in another style. It is high time,' he says,' to tell the world that a man who is hanged is good for nothing; and that punishments which were intended for the good of society, should be useful to society. It is plain that twenty stout robbers, condemned to the public works, serve the state by their punishment; whereas when they are put to death, they benefit nobody but the executioner.' But with Monsieur Voltaire's leave, the poor wretch who is brought to such an end, may be good for many things, and among others to shew how ill a philosopher may reason upon him. He may be good to save his fellows from the same fate, and the life and property of honest men besides. Stat magni nominis umbra. If he cannot beat hemp, or repair the fortifications, he may teach * His words are, Qual può essere il diritto, che si attribuiscono gli uomini di trucidare i loro simili? Non certamente quello, da cui risultano la sovranità e le leggi. Esse non sono che una somma di minime porzioni della privata libertà di ciascuno.Chi è mai colui, che abbia voluto lasciare ad altri uomini l'arbitrio di ucciderlo? Come mai nel minimo sagrificio della libertà di ciascuno vi può essere quello del massimo tra tutt' i beni, la vita? Dei Delitt. &c. § xvi. hundreds |