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Inquest of the nation, to bestow upon this momentous subject the most patient and dispassionate attention. We look with the utmost confidence to the result.
Closely connected with this defect in our criminal jurisprudence, is that subject in which so general an interest has been simultaneously excited, and respecting which the House of Lords has pledged itself to institute an inquiry. If it is an acknowledged evil that the sentence should be severer than the punishment, it must be admitted to be an evil of still greater magnitude, that the punishment should be severer than the law. If too wide a discretion is upon the present system entrusted to the judge in acting upon the decision of the jury, the sentence of the judge himself, when the punishment is less than death, becomes subject to a discretion scarcely less extensive, and far more liable to abuse, in the person of the gaoler. The portentous increase of crime within the last ten years, has had the effect of pressing this subject also, irresistibly upon the public attention. Lord Lansdowne adverts to the papers laid before the House of Lords, from which it appears, that while, in the years 1805, 1806, and 1807, the amount of convictions was 9865, in the years 1815, 1816, and 1817, the number was 19,730; and the result of the present year promises to be still more appalling. Any speculative inquiry into the primary cause of this increase of crime, would, perhaps, be of little practical advantage; it is doubtless the result, in a great measure, of the peculiar political circumstances of the country; but from whatever source,' remarked his Lordship, these waters of bitterness have flowed, "it must depend chiefly on the state of the receptacles into which they enter, whether their progress shall, or shall not be accele'rated.'
If, under the operation of that multiplication of penal laws which the state of our society may render necessary, a number, or we should rather call it a population, exceeding 13,000, is to be annually consigned to our prisons, it must materially depend upon the system of management and discipline in those prisons, whether those members be annually returned into the bosom of society, after their acquittals or the termination of their sentences, in a reformed and improved condition, or let loose to prey upon it, more accomplished in the art and more deeply advanced in the principles of crime. Almost all that can be said on this subject, is comprised in the memorable inscription on the gates of a continental prison: "Parum est coercere improbos pœnâ, nisi probos efficias disciplina."'
It is scarcely possible to say in which branch of the administration of our penal laws, a reform is most loudly called for. With regard to both parts of the subject, the remark of the Prison Discipline Society in their Preface to Lord Lansdowne's Speech, ap
plies with equal force, that the noblest offices of humanity, and the dearest objects of self-interest, are inseparably united.'
With regard to the necessity of some reform in the system of our Prison Discipline, there exists indeed a difference of feeling, but scarcely a difference of opinion. Mr. Buxton's work, by a simple recital of facts, has precluded the necessity of having recourse to speculative reasonings in favour of either the practicability or the efficiency of rendering punishment subservient to the reformation of the delinquent. But still, there is a listlessness of feeling respecting admitted truths when not brought home to the heart, which prevents, in this case as in many others of equal importance, the sentiment from developing itself in action. The learned, the judicious, the pious Boerhaave,' says Dr. Johnson, relates, that he never saw a criminal dragged to exe'cution, without asking himself, Who knows whether this man is not less culpable than me (I)? Who can congratulate himself,' adds our great moralist, upon a life passed without some act 'more mischievous to the peace or prosperity of others, than the theft of a piece of money? This is the feeling which belongs to a right view of the subject, and which forbids that proud withdrawment of the mind from the disgustful details of crime and punishment, which self-love induces in many estimable persons, who, conceiving themselves to have no part or lot in the matter, seem afraid of coming within the infection of sympathy.
We are not advocates for exciting an improper commiseration for the criminal; for bestowing upon delinquency, that share of public attention-we had almost said favour, which is withheld from virtuous poverty and unavoidable misfortune. It is one of the worst effects of the existing system, that it tends to merge our horror and indignation at the crime, in pity for the culprit, and to hinder our acquiescence in the administration of justice. The disproportion of the sentence to the guilt of the offender, in cases where the punishment of death is awarded to crimes without violence, is so revolting to humanity, that it renders the best part of society conspirators in their hearts against the laws of their country. They who would rejoice at 'the correction of a thief, are yet shocked at the thought of 'destroying him. His crime shrinks to nothing compared with his misery, and severity defeats itself by exciting pity.'*
Respect for the laws, is, next to the religious principle, by far the most important and salutary restraint upon human passions, that can be brought to act upon a civilized community; it is in fact the chief bond which holds society together. The fear of punishment is but remotely concerned in producing this subor
* Dr. Johnson. Rambler, No. 114.
dination to Law: in the absence of other restraints of a moral nature, this fear is found wholly inefficacious to deter from the dreadful venture of setting the consequences of crime at defiance. That which is of all dreadful things the most dreadful'-death, is daily encountered with a hardihood which leaves no room for surprise, that even when arrayed in all the terrific ceremonial of punishment, the fear of death should scarcely be effectual to repress the mis-directed spirit of enterprise, much less to control the inveterate habits of the hardened and the desperate. There is no passion in the mind of man so weak,' remarks Lord Bacon, but it mates and masters the fear of death.' Certainly, hanging is not punishment enough, is not terrible enough, to ensure obedience to the laws. Torture is not enough, it has been tried, and proved to be not enough, to overcome the bold contempt which, in the absence of moral fear, is felt by the offender towards his judges, whose utmost vengeance can, he knows, but wrest from him his life. Respect for the laws is a very different principle, and one more deeply seated in our nature, than this animal fear: it springs from a sense of justice, and from the conscious need of that protection which the laws alone can afford. Conscience and self-interest are alike implicated in our solicitude for the maintenance of their authority; and punishment, when conformable to our ideas of what the laws justly require as the sanction of that authority, is viewed with unmixed approbation, not only as the proper mark of infamy set upon the offence, but as the pledge of our own safety.
This respect for the laws is found to be in many instances not totally destroyed, even where the fear of punishment has not sufficed to deter from the commission of crime. Often the culprit will acknowledge the equity of his sentence, and his acquiescence in the law by which he suffers, is, in such cases, followed by a salutary contrition for the wrong he has done to society. This idea of punishment, as a thing deserved and right, being once destroyed, no degree of severity will impart to the sanction of the law the force of a moral restraint. Punishment becomes efficient as a preventive of crime, chiefly as it contributes to render crime itself infamous, by striking in with the secret decision of conscience, and proclaiming before the world what the offender himself dreads to hear as the anticipated sentence of the tribunal of God. But when the penalty is as excessive as its execution is uncertain, it is not very likely that either the moral fear, or the servile dread of punishment, will be very efficacious in preventing crime. Could any expedient be devised, more directly adapted to divest of all its impressive majesty, the awful ceremonial of doom, than the practice of our criminal courts, where the audience are accustomed to hear the sentence of death passed upon their fellow-creatures, upon whom
it is never intended to be executed, upon whom the spectators know that it is never intended to be executed, while the culprit himself is confident that it is merely a piece of legal form?
A very striking instance of the gross impropriety of this practical fiction, was, on one occasion, referred to in the House of Commons, by an honourable member who had himself been an eye witness of the scene. Upon the home circuit, some years ago, a young woman was tried for having stolen to the amount of forty shillings in a dwelling-house. It was her first offence, and was attended by many circumstances of extenuation. The prosecutor appeared, as he stated, from a sense of duty; the witnesses very reluctantly gave their evidence, and the jury still more reluctantly their verdict of guilty. It was impossible not to observe the interest excited in the court. The judge passed sentence of death. She instantly fell lifeless at the bar. Lord Kenyon, whose sensibility was not impaired by the sad duties of his office, cried out in great agitation from the Bench, "I "don't mean to hang you, will nobody tell her I don't mean "to hang her?" I then felt,' continued the honourable relater of this fact, as I now feel, that this was passing sentence not upon the prisoner, but upon the law. I ask whether an English judge ought to be placed in a situation where it is imperative upon him to pass sentence of death, when he has not the remotest intention to order the sentence to be carried into execution?'*
If the very design of penal severities, so far as intimidation is admitted to be their design, is thus frustrated by their being reduced to a doubtful threat, the effect of the practice is not less to be deprecated, in relation to the reverence which it is so necessary to cherish for the institutions of our country. Perhaps no feature in the English character is more distinguishing. than the universal reference which is either tacitly or directly made on all occasions of civil wrong, to the laws. Among no nation has the phrase-you have no right, so authoritative an emphasis. The weakest feels himself strong in the protection of the laws, and the mightiest feels his strength of no avail against them. Through all our revolutionary changes, the laws have never lost their hold upon the public mind, but have constantly been appealed to and upheld, as constituting the very essence of all that is included in the venerated name of our country. The origin of this steady attachment, will in vain be sought for in the theoretical perfection of our criminal code. A more rational cause presents itself in the equality of protection which that inestimable institution, the trial by jury, extends to the meanest subject, and in the independence and incorruptibility of the
* Parliamentary Debates, March, 1811.
Judicial Bench. The verdict of an English jury, given in the face of day, under the direction of the judge who sums up the evidence which is to guide their decision, has been with reason held to afford the best possible security for the protection of innocence and the repression of crime, that human imperfection admits of; and hence the general acquiescence which is felt in the issue of the trial. It is not by fear, animal fear,' that man is to be governed in a state of social freedom. Hobbes's remark, that Laws without the sword are but bits ' of parchment,' has been finely met with the antithesis, that Without the laws the sword is but a piece of iron.' The hand which wields it, imparts to it all its terrors. It is an invisible power, 'the awful power of Law, acting on natures pre.configured to its influence, which quells the spirit of the culprit; a power which, to use the words of a profound thinker, is 'therefore irresistible, because it takes away the very will of resisting. A faculty is appealed to in the offender's own being, and it answers to the appeal. Were it not for this moral influence of the laws upon the conscience, the faster society was cleared of malefactors, the more familiarized would the contemplation of death be to the still-growing remainder of the vicious, and the more determined would be their conspiracy against the interests of society. Is it not then of infinite consequence, that legislators should not be misled by the design of striking with terror the offender, to overlook, in the severity of the sanction, the danger of weakening the primary and more efficient inducement to the observance of the laws? Surely, when public opinion inclines almost to take part with the criminal against the law, as the victim of a sanguinary vengeance, rather than to express itself in indignation at his crime, this danger has already put on the form of existing evil. No one who has witnessed our frequent executions, can doubt that this is the case, at least among the lower classes, upon whom it must be remembered the example of the sufferer is more expressly intended to have a beneficial influence. Indeed it may be ob'served,' says Dr. Johnson, that all but murderers have, at their last hour, the common sensations of mankind pleading in their favour.' Not so when the punishment is felt to be apportioned to the offence. In those cases, whatever pity is excited for the individual, no dissatisfaction with the sentence frustrates the ends of justice. The faint and forced halloos with which sometimes a cart of convicts are greeted by the lowest rabble, on their way to the hulks, speak no such treason against the laws, as the sullen silence with which the crowd gaze on what they view as legalized murder, the execution of a man for forgery or horse-stealing. He must know little of human nature, who imagines that the horrors of such a scene are adapted