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succeeded them, the grand problems of penal law, are by no means generally understood.
It is obvious, on the slightest reflection, that there are only two possible ways in which punishment can be inflicted: either by pecuniary or corporeal penalties. Hence arises that maxim in English law: Qui non habet in crumend, luat in corpore—Those who are rich, must make compensation in money; those who are poor, must atone for their offences by incarceration, or bodily labour.
In different countries, and at different periods, three systems of criminal law have prevailed, each of which has had its admirers. The first, breathing the spirit of Draco and of barbarism, affixed the punishment of death to every violation of the law. The second, somewhat less ferocious, inflicted certain, severe, disgraceful, or durable punishments: this has been called the principle of intimidation. The third, which is at present the popular plan, by the establishment of Sunday-schools, penitentiaries, and other systems of instruction, expects to prevent crime by moral reformation.* But the grand desideratum in penal
* It would be foreign to our subject to enter into any minute discussion of the present state of the criminal law;
law is the adaptation of punishment to crime; for it must be observed, that all punishment is an evil, and that the only consideration which
but we cannot forbear adding our small mite of praise to those benevolent individuals who have not suffered their exertions to slacken, because the government have exhibited a disgraceful indifference to the calls of humanity. There can be no doubt, whatever the small wits and the lovers of antiquity may say to the contrary, that the general diffusion of education can alone diminish the frequency of crime. Venienti occurrite tnorbo, is the maxim of practical wisdom, both in physics and in legislation. When a man meditates the commission of an offence, he calculates the . profits and loss of his enterprize: for it is absurd to suppose that the most reckless and hardened delinquent would ever expose himself to the vengeance of the law, without balancing the value of the expected booty against the chance of detection. Therefore he is influenced, as all other men are, by motives: the hope of gain is the motive that incites to violate the law; the fear of punishment (that is the loss) is the motive that admonishes him to remain an honest man. If the former motive predominate, the crime will be perpetrated: if the latter prevail, the enterprize Will be abandoned. It is quite clear, that uneducated men, because they cannot distinguish between general and particular consequences, are not so much under the influence of moral restraint, as educated men: therefore it is the duty of government to extend knowledge. If the money which is spent in building gaols, were expended in founding and endowing schools, instead of witnessing the vice and sufferings of malefactors, we should behold the virtue and happiness of honest and industrious citizens. Extend education; enable the youth of the country to feel practically, in their own persons, that even in this life virtue produces more pleasure
justifies the magistrate in inflicting it at all, is the prevention of greater evil. If it could be proved, after the commission of a murder, that the acquittal of the murderer would not induce any other person to perpetrate a similar crime in the hope of escaping with impunity, on that supposition the magistrate would not be justified in inflicting any punishment. But since experience shows, that the most dangerous consequences would result to society, if murderers were not punished with death, the magistrate is permitted to " do evil that good may come," that is to say, he is authorized to take away the life of one man to save the lives of thousands. Since, then, laws are made to secure and extend happiness, and not to produce pain, it follows, that in the apportionment of punishment to crime, no greater degree of suffering should be inflicted on the offender
than vice; reconcile interest with duty; show that honesty is the best policy, and you secure a moral and religious population. Crimes will be diminished, because it will be seen that there is more profitableness in obeying, than in violating the law. It is not a little surprising that the Edinburgh Review, with an inconsistency perfectly unaccountable, has declared that but little expectation can be entertained of the improvement of the lower order. We cannot pursue this subject, but we earnestly entreat all those who pin their faith on the sleeve of Mr. Jeffrey, to pause before they assent to his disheartening doctrine. At any rate the chance is sufficiently attractive to warrant an experiment.
than is necessary to prevent a repetition of the crime. **
Regula Peccatis quae poenas irroget aequas,
Inasmuch as the punishment exceeds either in duration or intensity, the quantum that is sufficient to answer the end of example, it becomes vindictive, and therefore unjustifiable. Let it then be assumed, that there are only two modes of inflicting punishment, viz. corporeal or pecuniary; and that the prevention of crime is the sole end of punishment. Reasoning on these data, we shall endeavour to show, that the legislature of this country have no right to interfere in matters of religious opinion.
The powers of Government are delegated, and held in trust for the people, on the implied condition, that nothing will be done which militates against general utility. Therefore, if the Government enacts laws, which are productive of misery, and cannot in any way prove beneficial, the condition on which their powers were delegated, is broken, and consequently they revert back to the donors—the people. This principle, borrowed from the old feudal law of tenures, is the most important feature in constitutional law; it has been clearly explained by Locke, in his Dissertation on Government, and is sanctioned and established by the Revolution of 1688.
In the last chapter, abundant evidence was adduced to prove, that in no one instance had the infliction of punishment produced uniformity of opinion: but, on the contrary, that all prosecutions, whether by fines or bodily suffering, had invariably rendered the seceders more obstinate in their dissent. It has also been shown, that the prevention of crime is the sole justifiable end of punishment. But experience has demonstrated, that differences of religious opinion cannot be prevented: therefore, the legislature have no right to interfere. For the evil produced by punishment, becomes in this instance, a pure and unmixed evil: it does not prevent a greater evil: the suffering it occasions to any individual, is vindictive, because it will never alter his opinion, but rather confirm it: neither is it exemplary, because it never has deterred, and never will deter, others from a repetition of the offence.
It is hoped, that enough has been said to prove the political unjustiftableness of penal laws, the object of which is to controul the right of