Page images

ted without a possibility of contradiction or discovery; that the success and prevalency of this vice tend to introduce the most grievous and fatal injustice into the administration of human affairs, or such a distrust of testimony as must create universal embarrassment and confusion:-when we reflect upon these mischiefs, we shall be brought, probably, to agree with the opinion of those who contend that perjury, in its punishment, especially that which is attempted in solemn evidence, and in the face of a court of justice, should be placed upon a level with the most flagitious frauds.

The obtaining of money by secret threats, whe ther we regard the difficulty with which the crime is traced out, the odious imputations to which it may lead, or the profligate conspiracies that are sometimes formed to carry it into execution, deserves to be reckoned amongst the worst species of robbery.

The frequency of capital executions in this country, owes its necessity to three causes ;-much liberty, great cities, and the want of a punishment short of death, possessing a sufficient degree of terror. And if the taking away of the life of malefactors be more rare in other countries than in ours, the reason will be found in some difference in these articles. The liberties of a free people, and still more the jealousy with which these liberties are watched, and by which they are preserved, permit not those precautions and restraints, that inspec tion, scrutiny, and control, which are exercised with success in arbitrary governments. For example, neither the spirit of the laws, nor of the people, will suffer the detention or confinement of suspected persons, without proofs of their guilt, which it is often impossible to obtain; nor will they allow that masters of families be obliged to record and render up a description of the strangers or inmates whom they entertain; nor that an ac count be demanded, at the pleasure of the magi strate, of each man's time, employment, and means of subsistence; nor securities to be required when these accounts appear unsatisfactory or dubious, nor men to be apprehended upon the mere sugges tion of idleness or vagrancy; nor to be confined to

certain districts; nor the inhabitants of each district to be made responsible for one another's behaviour: nor passports to be exacted from all persons entering or leaving the kingdom: least of all will they tolerate the appearance of an armed force, or of military law; or suffer the streets and public roads to be guarded and patrolled by soldiers; or, lastly, intrust the police with such discretionary powers, as may make sure of the guilty, however they involve the innocent. These expedients, although arbitrary and rigorous, are many of them effectual and in proportion as they render the commission or concealment of crimes more difficult, they subtract from the necessity of severe punishment.-Great cities multiply crimes, by presenting easier opportunities, and more incentives to libertinism, which in low life is commonly the introductory stage to other enormities; by collecting thieves and robbers into the same neighbourhood, which enables them to form communications and confederacies, that increase their art and courage, as well as strength and wickedness; but principally by the refuge they afford to viliany, in the means of concealment, and of subsisting in secrecy, which crowded towns supply to men of every description. These temptations and facilities can only be counteracted by adding to the number of capital punishments.-But a third cause, which increases the frequency of capital executions in England, is, a defect of the laws, in not being provided with any other punishment than that of death, sufficiently terrible to keep offenders in awe. Transportation, which is the sentence second in the order of severity, appears to me to answer the purpose of example very imperfectly: not only because exile is in reality a slight punishment to those who have neither property, nor friends, nor reputation, nor regular means of subsistence, at home; and because their situation becomes little worse by their crime, than it was before they committed it; but because the punishment, whatever it be, is unobserved and unknown. A transported convict may suffer under his sentence, but his sufferings are removed from the view of his countrymen; his misery is unseen; his condition strikes

no terror into the minds of those for whose warning and admonition it was intended. This chasm in the scale of punishment produces also two farther imperfections in the administration of penal justice-the first is, that the same punishment is extended to crimes of very different character and malignancy; the second, that punishments separated by a great interval, are assigned to crimes hardly distinguishable in their guilt and mischief.

The end of punishment is twofold;-amendment, and example. In the first of these, the reformation of criminals, little has ever been effected, and little, I fear, is practicable. From every species of pu nishment that has hitherto been devised, from imprisonment and exile, from pain and infamy, malefactors return more hardened in their crimes, and more instructed. If there be any thing that shakes the soul of a confirmed villain, it is the expectation of approaching death. The horrors of this situation may cause such a wrench in the mental organs, as to give them a holding turn: and I think it probable, that many of those who are executed, would, if they were delivered at the point of death, retain such a remembrance of their sensations, as might preserve them, unless urged by extreme want, from relapsing into their former crimes. But this is an experiment that, from its nature, cannot be repeated often.

Of the reforming punishments which have not yet been tried, none promises so much success as that of solitary imprisonment, or the confinement of criminals in separate apartments. This improve ment augments the terror of the punishment; secludes the criminal from the society of his fellowprisoners, in which society the worse are sure to corrupt the better; weans him from the knowledge of his companions, and from the love of that turbulent, precarious life, in which his vices had engaged him; is calculated to raise up in him reflec tions on the folly of his choice, and to dispose his mind to such bitter and continued penitence, as may produce a lasting alteration in the principles of his conduct.

As aversion to labour is the cause from which half of the vices of low life deduce their origin and


continuance, punishments ought to be contrived with a view to the conquering of this disposition. Two opposite expedients have been recommended for this purpose: the one, solitary confinement with hard labour; the other, solitary confinement with nothing to do. Both expedients seek the same end;-to reconcile the idle to a life of industry. The former hopes to effect this by making labour habitual; the latter by making idleness insupportable and the preference of one method to the other depends upon the question whether a man is more likely to betake himself of his own accord, to work, who has been accustomed to employment, or who has been distressed by the want of it. When jails are once provided for the separate confinement of prisoners, which both proposals require, the choice between them may soon be determined by experience. If labour be exacted, I would leave the whole, or a portion, of the earnings to the prisoner's use, and I would debar him from any other provision or supply; that his subsistence, however coarse and penurious, may be proportioned to his diligence, and that he may taste the advantage of industry together with the toil. I would go farther; I would measure the confinement, not by the duration of time, but by quantity of work, in order both to excite industry, and to render it more voluntary. But the principal difficulty remains still; namely, how to dispose of criminals after their enlargement. By a rule of life, which is perhaps too invariably and indiscriminately adhered to, no one will receive a man or woman out of a jail, into any service or employment whatever. This is the common misfortune of public punishments, that they preclude the offender from all honest means of future support.* It seems incumbent upon the state to secure a maintenance to those who are willing to work for it; and yet it is absolutely necessary to divide criminals as far asunder from one another as possi- .

Until this inconvenienee be remedied, small offences had perhaps better go unpunished: I do not mean that the law should exempt them from punishment, but that private persons should be tender in prosecuting them.

ble. Whether male prisoners might not, after the term of their confinement was expired, be distributed in the country, detained within certain limits, and employed upon the public roads; the females be remitted to the overseers of country parishes, to be there furnished with dwellings, and with the materials and implements of occupation :-whether by these, or by what other methods, it may be pos sible to effect the two purposes of employment and dispersion; well merits the attention of all who are anxious to perfect the internal regulation of their country.

Torture is applied either to obtain confessions of guilt, or to exasperate or prolong the pains of death. No bodily punishment, however excruciating or long-continued, receives the name of torture, unless it be designed to kill the criminal by a more lingering death; or to extort from him the discovery of some secret, which is supposed to lie concealed in his breast. The question by torture appears to be equivocal in its effects: for since extremity of pain, and not any consciousness of remorse in the mind, produces those effects, an innocent man may sink under the torment, as well as he who is guilty. The latter has as much to fear from yielding, as the former. The instant and almost irresistible desire of relief may draw from one sufferer false accusations of himself or others, as it may sometimes extract the truth out of another. This ambiguity renders the use of torture, as a means of procuring information in criminal proceedings, liable to the risk of grievous and irreparable injustice. For which reason, though recommended by ancient and general example, it has been properly exploded from the mild and cautious system of penal jurisprudence established in this country.

Barbarous spectacles of human agony are justly found fault with, as tending to harden and deprave the public feelings, and to destroy that sympathy with which the sufferings of our fellow-creatures ought always to be seen: or, if no effect of this i kind follow from them, they counteract in some measure their own design, by sinking men's abhorrence of the crime in their commiseration of the

« PreviousContinue »