  Of Punishments in general.—The mode of ascertaining the degrees of Punishment.—The objects to be considered in inflicting Punishments—namely, Amendment—Example—and Retribution.—The Punishment of Death has little effect on hardened Offenders.—Examples of convicts exhibited in servile employments would make a greater impression.—Towards the rendering criminal laws perfect, Prevention ought to be the great object of the Legislature.—General Rules suggested for attaining this object, with illustrations.—The severity of our laws with respect to Punishments—not reconcileable to the principles of morality, and a free government—calculated in their operation to debase the human character.—General Reflections on the Punishments authorised by the English Law.—The disproportion of Punishments, exemplified in the case of an assault, opposed to a larceny.—In seduction and adultery, which are not punishable as criminal offences.—The laws severe in the extreme in political offences, while they are lax and defective with regard to moral Crimes.—The necessity of enforcing the observance of religious and moral Virtue by lesser Punishments.—General Reflections applicable to public and private Crimes.—The dangers arising from the progress of immorality to the safety of the State.—The leading offences made capital by the laws of England PUNISHMENT, (says a learned and respectable author) is an evil which a delinquent suffers, unwillingly, by the order of a Judge or Magistrate; on account of some act done which the Law prohibits, or something omitted which the Law enjoins. All Punishment should be proportioned to the nature of the offence committed; and the Legislature, in adjusting Punishment with a view to the public good, ought, according to the dictates of sound reason, to act on a comparison of the Crime under consideration, with other offences injurious to Society: and thus by comparing one offence with an It is the triumph of Liberty, says the great Montesquieu, when the criminal laws proportion punishments to the particular nature of each offence.—It may be further added, that when this is the case, it is also the triumph of Reason. In order to ascertain in what degree the Public is injured or endangered by any crime, it is necessary to weigh well and dispassionately the nature of the offence, as it affects the Community.—It is through this medium, that Treason and Rebellion are discovered to be higher and more dangerous offences than breaches of the peace by riotous assemblies; as such riotous meetings are in like manner considered as more criminal than a private assault. In punishing delinquents, two objects ought to be invariably kept in view.— 1. The Amendment of the Delinquent. 2. The Example afforded to others. To which may be added, in certain cases, 3. Retribution to the party injured. If we attend to Reason, the Mistress of all Law, she will convince us that it is both unjust and injurious to Society to inflict Death, except for the highest offences, and in cases where the offender appears to be incorrigible. Wherever the amendment of a delinquent is in view, it is clear that his punishment cannot extend to death: If expiating an offence by the loss of life is to be (as it certainly is at present) justified by the necessity of making examples for the purpose of preventing crimes, it is evident that the present System has not had that effect, since they are by no means diminished; and since even the dread of this Punishment, has, under present circumstances, so little effect upon guilty associates, that it is no uncommon thing for these hardened offenders to be engaged in new acts of theft, at the very moment their companions in iniquity are launching in their very presence into eternity. The minds of offenders, long inured to the practice of criminal pursuits, are by no means beneficially affected by the punishment of Death, which they are taught to consider as nothing but a momentary paroxysm which ends all their distress at once; nay even as a relief, which many of them, grown desperate, look upon with a species of indifference, bordering on a desire to meet that fate, which puts an end to the various distresses and anxieties attendant on a life of criminality. The effect of capital punishments, in the manner they are now conducted, therefore, as relates to example, appears to be much less than has been generally imagined. Examples would probably have much greater force, even on those who at present appear dead to shame Towards accomplishing the desirable object of perfection in a criminal code, every wise Legislature will have it in contemplation rather to prevent than to punish crimes; that in the chastisement given, the delinquent may be restored to Society as an useful member. This purpose may possibly be best effected by the adoption of the following general rules. 1. That the Statute-Laws should accurately explain the enormity of the offence forbidden: and that its provisions should be clear and explicit, resulting from a perfect knowledge of the subject; so that, justice may not be defeated in the execution. 2. That the Punishments should be proportioned and adapted, as nearly as possible, to the different degrees of offences; with a proper attention also to the various shades of enormity which may attach to certain crimes. 3. That persons prosecuting, or compelled so to do, should not only be indemnified from expence; but also that reparation should be made, for losses sustained by the injured party, in all cases where it can be obtained from the labour, or property of the delinquent. 4. That satisfaction should be made to the State for the injury done to the Community; by disturbing the peace, and violating the purity of Society. Political laws, which are repugnant to the Law of nature and reason, ought not to be adopted. The objects above-mentioned seem to include all that can be necessary for the attention of Law-givers. If on examination of the frame and tendency of our criminal Laws, both with respect to the principles of reason and State Policy, the Author might be allowed to indulge a hope, that what he brings under the Public Eye on this important subject, would be of use in promoting the good of Mankind, he should consider his labours as very amply rewarded. The severity of the criminal Laws is not only an object of horror, but the disproportion of the punishments, as will be shewn in the course of this Work, breathes too much the spirit of Draco, Though the ruling principle of our Government is unquestionably, Liberty, it is much to be feared that the rigour which the Laws indiscriminately inflict on slight as well as more atrocious offences, can be ill reconciled to the true distinctions of Morality, and strict notions of Justice, which form the peculiar ex By punishing smaller offences with extraordinary severity, is there not a risque of inuring men to baseness; and of plunging them into the sink of infamy and despair, from whence they seldom fail to rise capital criminals; often to the destruction of their fellow-creatures, and always to their own inevitable perdition? To suffer the lower orders of the people to be ill educated—to be totally inattentive to those wise regulations of State Policy which might serve to guard and improve their morals; and then to punish them for crimes which have originated in bad habits, has the appearance of a cruelty not less severe than any which is exercised under the most despotic Governments. There are two Circumstances which ought also to be minutely considered in apportioning the measure of Punishment—the immorality of the action; and its evil tendency. Nothing contributes in a greater degree to deprave the minds of the people, than the little regard which Laws pay to Morality; by inflicting more severe punishments on offenders who commit, what may be termed, Political Crimes, and crimes against property, than on those who violate religion and virtue. When we are taught, for instance, by the measure In offences which are considered by the Legislature as merely personal, and not in the class of public wrongs, the disproportionate punishment is extremely shocking. If, for example, a personal assault is committed of the most cruel, aggravated, and violent nature, the offender is seldom punished in any other manner than by fine and imprisonment: but if a delinquent steals from his neighbour secretly more than the value of twelve-pence, the Law dooms him to death. And he can suffer no greater punishment (except the ignominy exercised on his dead body,) if he robs and murders a whole family. Some private wrongs of a flagrant nature are even passed over with impunity: the seduction of a married woman—the destruction of the peace and happiness of families, resulting from alienating a wife's affections, and defiling her person, is not an offence punishable by the Criminal Law; while it is death to rob the person, who has suffered this extensive injury, of a trifle exceeding a shilling. The Crime of Adultery was punished with great severity both by the Grecian and the Roman Laws.—In England this offence is not to be found in the Criminal Code.—It may indeed be punished with fine and penance by the Spiritual Law; or indirectly Like unskilful artists, we seem to have begun at the wrong end; since it is clear that the distinction, which has been made in the punishments between public and private crimes, is subversive of the very foundation it would establish. Private Offences being the source of public crimes, the best method of guarding Society against the latter is, to make proper provisions for checking the former.—A man of pure morals always makes the best Subject of every State; and few have suffered punishment as public delinquents, who have not long remained unpunished as private offenders. The only means, therefore, of securing the peace of Society, and of preventing more atrocious crimes, is, to enforce by lesser punishments, the observance of religious and moral duties: Without this, Laws are but weak Guardians either of the State, or the persons or property of the Subject. The People are to the Legislature what a child is to a parent:—As the first care of the latter is to teach the love of virtue, and a dread of punishment; so ought it to be the duty of the former, to frame Laws with an immediate view to the general improvement of morals. "That Kingdom is happiest where there is most virtue," says an elegant writer.—It follows, of course, that those Laws are the best which are most calculated to promote Religion and Morality; the operation of which in every State, is to produce a conduct intentionally directed towards the Public Good. It seems that by punishing what are called public Crimes, with peculiar severity, we only provide against present and temporary mischiefs. That we direct the vengeance of the Law against effects, which might have been prevented by obviating their causes:—And this may be assigned in part as the cause of Civil Wars and Revolutions.—The Laws are armed against the powers of Rebellion, but are not calculated to oppose its principle. Few civil wars have been waged from considerations of Public Virtue, or even for the security of Public Liberty. These desperate undertakings are generally promoted and carried on by abandoned characters, who seek to better their fortunes in the general havoc and devastation of their country.—Those men are easily seduced from their Loyalty who are apostates from private virtue. To be secure therefore against those public calamities which, almost inevitably, lead to anarchy and confusion, it is far better to improve and confirm a nation in the true principles of natural justice, than to perplex them by political refinements. Having thus taken a general view of the principles applicable to Punishments in general, it may be High Treason is the highest civil Crime which can be committed by any member of the Community.—After various alterations and amendments made and repealed in subsequent reigns, the definition of this offence was settled as it originally stood, by the Act of the 25th of Edward III. stat. 5, cap. 2. and may be divided into seven different heads: 1. Compassing or imagining the Death of the King, Queen, or Heir Apparent. 2. Levying War against the King, in his realm. 3. Adhering to the King's enemies, and giving them aid, in the realm or elsewhere. 4. Slaying the King's Chancellor or Judge in the execution of their offices. 5. Violating the Queen, the eldest daughter of the King, or the wife of the Heir Apparent, or eldest Son. 6. Counterfeiting the King's Great Seal, or Privy Seal. 7. Counterfeiting the King's Money, or bringing false Money into the kingdom. This detail shews how much the dignity and security of the King's person is confounded with that of his officers, and even with his effigies imprest on his Coin.—To assassinate the servant, or to counterfeit the type, is held as criminal as to destroy the Sovereign. This indiscriminate blending of crimes, so different and disproportionate in their nature, under one common head, is certainly liable to great objections; seeing that the judgment in this offence is so extremely severe and terrible, viz. That the offender be drawn to the gallows on the ground or pavement: That he be hanged by the neck, and then cut down alive: That his entrails be taken out and burned while There are indeed some shades of difference with regard to coining money; where the offender is only drawn and hanged; and that part of the punishment which relates to being drawn and quartered is, to the honour of humanity, never practised. But even in cases of the most atrocious criminality, the execution of so horrid a sentence seems to answer no good political purpose.—Nature shudders at the thought of imbruing our hands in blood, and mangling the smoaking entrails of our fellow-creatures. In most Countries and in all ages, however, Treason has been punished capitally.—Under the Roman Laws, by the Cornelia Lex, of which Sylla, the Dictator, was the author, this Offence was created.—It was also made a capital Crime when the Persian Monarchy became despotic. By the Laws of China, Treason and Rebellion are punished with a rigour even beyond the severity of our judgment, for the criminals are ordained to be cut in ten thousand pieces. There is another species of Treason, called Petty By the Lex Pompeia of the Romans, Parricides were ordained to be sown in a sack with a dog, a cock, a viper, and an ape, and thrown into the sea, thus to perish by the most cruel of all tortures. The ancient Laws of all civilized nations punished the crime of Parricide by examples of the utmost severity.—The Egyptians put the delinquents to death by the most cruel of all tortures—mangling the body and limbs, and afterwards laying it upon thorns to be burnt alive. By the Jewish Law it was death for children to curse, or strike their parents; and in China, this crime was considered as next in atrocity to Treason and Rebellion, and in like manner punished by cutting the delinquent in one thousand pieces. The Laws of England however make no distinction between this crime and common Murder; while it is to be lamented that offences far less heinous, either morally or politically considered, are punished with the same degree of severity; and it is much to be feared, that this singular inequality is ill calculated to inspire that filial awe and reverence, to parents, which all human Laws ought to inculcate. The offences next in enormity to Treason, are by the Laws of England, denominated Felonies, and these may be considered as of two kinds, public and private. Under the head of Public Felonies we shall class the following: having peculiar relation to the State.
We consider as comprehended under Private Felonies the following crimes committed, 1. Against the Life, 2. the Body, 3. The Goods, 4. The Habitation of the Subject.
Those Crimes which we have denominated Public Felonies being merely of a political nature, it would seem that the ends of justice would be far better answered, than at present, and convictions oftener obtained, by different degrees of Punishment short of Death. With regard to Private Felonies, it may be necessary to make some specific observations—— The first, in point of enormity, is Murder, which may be committed in two Ways:—first, upon one's self, in which case the offender is denominated Felo de se or a Self-murderer;—secondly, by killing another person. The Athenian Law ordained, that persons guilty of Self-murder should have the hand cut off which did the murder, and buried in a place separate from the body; but this seems of little consequence.—When such a calamity happens, it is a deplorable misfortune; and there seems to be a great cruelty in adding to the distress of the wife, children, or nearest kin of the deceased, by the forfeiture of his whole property; which is at present confiscated by Law. By the Law of England, the judgment in case of Murder is, that the person convicted shall suffer death and that his body shall be dissected. The Laws of most civilized nations, both ancient and modern, have justly punished this atrocious offence with death. It was so by the Laws of Athens, and also by the Jewish and Roman Laws.—By the Persian Law Murderers were pressed to death be In the ruder ages of the world, and before the manners of mankind were softened by the arts of peace and civilization, Murder was not a capital crime: Hence it is that the barbarous nations which over-ran the Western Empire, either expiated this crime by private revenge, or by a pecuniary composition.—Our Saxon ancestors punished this high offence with a fine; and they too countenanced the exercise of that horrid principle of revenge, by which they added blood to blood.—But in the progress of civilization and Society, the nature of this crime became better understood; private revenge was submitted to the power of the Law; and the good King Alfred first made Murder a capital offence in England. In this case, as in that of Self-murder, the property of the murderer goes to the State; without any regard to the unhappy circumstances of the families either of the murdered or the guilty person, who may be completely ruined by this fatal accident.—A provision which seems not well to accord with either the justice or mildness of our Laws. Man-slaughter is defined to be The killing another without malice, either express or implied: which may Homicide by Misadventure is, when one is doing a lawful act, without intent to hurt another, and death ensues.—For this offence a pardon is allowed of course; but in strictness of Law the property of the person convicted is forfeited; the rigour of which, however, is obviated by a Writ of Restitution of his goods, to which the party is now, by long usage, entitled of right; only paying for suing out the same. Homicide by necessity or in Self-defence, is another shade of Murder, upon which no punishment is inflicted: and in this is included what the Law expresses by the word Chance-medley: which is properly applied to such killing as happens in self-defence upon a sudden rencounter. Yet, still by strictness of Law, the goods and chattels of the person charged and convicted are forfeited to the Crown; contrary, as it seems to many, to the principles of Reason and Justice. It should be recollected that in all cases where the Homicide does not amount to Murder or Man-slaughter, the Judges permit, nay even direct, a verdict of acquittal.—But it appears more consonant with the sound principles of Justice, that the Law it Having thus briefly discussed what has occurred relative to the punishment of offences against life, we come next to make some observations on what we have denominated Private Felonies against the Body of the Subject. By the Grecian, Roman, and Jewish Laws, the abominable crime of Sodomy was punished with death.—In France, under the Monarchy, the offenders suffered death by burning. The Lombards were said to have brought this detestable vice into England, in the reign of Edward the Third.—In ancient times the men were hanged, and the women drowned: At length by the Act 25th of Henry the Eighth, cap. 6, it was made Felony without Benefit of Clergy.— It has been doubted, however, whether the severity of the punishment of a crime so unnatural, as even to appear incredible, does not defeat the object of destroying it, by rendering it difficult to convict an offender. The same objection has been made with respect to the crime of committing a Rape. A proper tenderness for life makes the Law require a strong evidence, and of course the proof is nice and difficult; By the Law of Egypt, Rapes were punished by cutting off the offending parts;—The Athenian Laws compelled the ravisher of a virgin to marry her. It was long before this offence was punished capitally by the Roman Law: but at length the Lex Julia inflicted the pains of death on the Ravisher.—The Jewish Law also punished this crime with death; but if a virgin was deflowered without force, the offender was obliged to pay a fine, and marry the woman. By the 18th of Elizabeth, cap. 7, this offence was made Felony without Benefit of Clergy. It is certainly of a very heinous nature, and, if tolerated, would be subversive of all order and morality; yet it may still be questioned, how far it is either useful or politic to punish it with death; and is worth considering, whether, well knowing that it originates in the irregular and inordinate gratification of unruly appetite, the injury to Society may not be repaired without destroying the offender. In most cases, this injury might be repaired by compelling (where it could be done with propriety,) the criminal to marry the injured party; and it would be well for Society, if the same rule extended not only to all forcible violations of chastity, but even to instances of premeditated and systematic Seduction. In cases, however, where marriage could not take place, on account of legal disability, or refusal on the part of the woman, the criminal ought to be severely punished, by pecuniary damages to the party injured, and by hard labour and confinement, or transportation for life. The offence considered as next in point of enormity to Rape, is Forcible Marriage, or Defilement of Women: but it is somewhat remarkable, that by confining the punishment to offences against women of estate only, the moral principles are made to yield to political considerations; and the security of property in this instance, is deemed more essential, than the preservation of female chastity. In short, the property of the woman is the measure of the crime; the statutes of the 3d of Henry the Seventh, cap. 2. and the 39th of Elizabeth, cap. 9, making it Felony without Benefit of Clergy, to take away, for lucre, any woman having lands or goods, or being an heir apparent to an estate, by force, or against her will, and to marry or to defile her. The forcible marriage and defilement of a woman without an estate is not punished at all; although, according to every principle of morality and reason, it is as criminal as the other. It is indeed an offence not so likely to be committed. However, it seems in every point of view, impolitic to punish such offences with death; it might be enough, to expiate the crime by alienating the estate from the husband—vesting it in the wife alone, and Polygamy stands next as an offence against the person:—It was first declared Felony by the statute of James the first, cap. 11, but not excluded from the Benefit of Clergy, and therefore not subject to the punishment of death. Though, in one view, the having a plurality of wives or husbands, appears only a political offence, yet it is undeniably a breach of religious and moral virtue, in a very high degree.—It is true, indeed, that in the early ages of the world, Polygamy was tolerated both in Greece and Rome, even after the People had arrived at a high pitch of refinement.—But since the institution of Matrimony under the present form, Polygamy must be considered as highly criminal, since marriage is an engagement which cannot be violated without the greatest injury to Society. The Public Interest, therefore, requires that it should be punished; and the Act 35th George III. cap. 67, which punishes this offence with transportation, is certainly not too severe. Mayhem, or Maiming, is the last in the Catalogue of Offences against the Person. It was first made Single Felony by the 5th of Henry the Fourth, cap. 5.—It is defined to be maiming, cutting the tongue, or putting out the eyes of any of the King's liege people. The statute of the 22d and 23d of Charles the Second, cap. 1. extends the description of this offence to slitting the nose, cutting off a nose or lip, To prove malice in this crime, it is sufficient that the act was voluntary, and of set purpose, though done on a sudden. Mayhem, as explained in the above statutes, is certainly a very atrocious offence; and as the punishment is not followed by corruption of blood, or the forfeiture of the property of the offender, it is, according to the present system, perhaps not too severe. One particular sort of Mayhem by cutting off the ear, is punishable by an Act 37 Hen. VIII. cap. 6. which directs that the offender shall forfeit treble damages to the party grieved, to be recovered by action of trespass; and £.10 by way of fine to the King. We next come to examine Private Felonies against the Goods or Property of the Individual, viz. Simple Larceny, Mixt Larceny, and Piracy. Simple Larceny is divided into two sorts;—1st, Grand Larceny, and 2d, Petit Larceny.—The first is defined to be the felonious taking and carrying away the mere personal property or goods of another, above the value of twelve pence.—This offence is capital, and punished with death, and the forfeiture of property. Petit Larceny is where the goods, taken in the Thus it appears, that by the rigour of the Law, stealing the least trifle above 12d. subjects the offender to the loss of life; a punishment apparently repugnant to reason, policy, or justice: more especially when it is considered, that at the time this Anglo Saxon Law was made, in the reign of Athelstan, 860 years ago, one shilling was of more value, according to the price of labour, than seventy-five shillings are at the present period: the life of man therefore may be justly said to be seventy-five times cheaper than it was when this mode of punishment was first established. By the Athenian Laws, the crime of Theft was punished, by paying double the value of what was stolen, to the party robbed; and as much more to the public.—Solon introduced a law, enjoining every person to state in writing, by what means he gained his livelihood; and if false information was given, or he gained his living in an unlawful way, he was punished with death.—A similar law prevailed among the Egyptians. The Lex Julia of the Romans made Theft punishable at discretion; and it was forbidden, that any person should suffer death, or even the loss of a member, for this crime.—The greatest punishment By the Jewish Law, Theft was punished in the same manner: with the addition of a fine according to the nature of the offence; excepting in cases where men were stolen, which was punished with death. In China, Theft is punished by the bastinadoe, excepting in cases of a very atrocious nature, and then the culprit is condemned to the knoutage—a contrivance not unlike the pillory in this country. The ancient Laws of this kingdom punished the crime of Theft differently.—Our Saxon ancestors did not at first punish it capitally.—The Laws of King Ina After various changes which took place under different Princes, in the rude and early periods of our history, it was at length settled in the 9th of Henry the First, (A.D. 1108,) that for theft and robbery, offenders should be hanged; this has continued to be the law of the land ever since, excepting in the county palatine of Chester; where the ancient custom of beheading felons was practised Montesquieu seems to be of opinion that as thieves are generally unable to make restitution, it may be just to make theft a capital crime.—But would not the offence be atoned for in a more rational manner, by compelling the delinquent to labour, first for the benefit of the party aggrieved, till recompence is made, and then for the State? According to the present system the offender loses his life, and they whom he has injured lose their property; while the State also suffers in being deprived of a member, whose labour, under proper controul, might have been made useful and productive. Observations have already been made on one consequence of the severity of the punishment for this offence; that persons of tender feelings conscientiously scruple to prosecute delinquents for inconsiderable Thefts. From this circumstance it is believed, that not one depredation in a hundred, of those actually committed, comes to the knowledge of Magistrates. Mixed or compound Larceny has a greater degree of guilt in it than simple Larceny; and may be committed either by taking from a man, or from his house. If a person is previously put in fear or assaulted, the crime is denominated Robbery. When a Larceny is committed which does not put the party robbed in fear; it is done privately and without his knowledge, by picking his pocket, or cutting the purse, and stealing from thence above the value of twelve pence; or publicly, with the knowledge of the party, by stealing a hat or wig, and running away. With respect to Dwelling Houses the Common Law has been altered by various acts of Parliament; the multiplicity of which is apt to create confusion; but upon comparing them diligently, we may collect that the following domestic aggravations of Larceny are punishable with death, without Benefit of Clergy. First, Larcenies above the value of twelve pence; committed—1st. In a church or chapel, with or without violence or breaking the same; 23 Henry VIII. cap. 1: 1 Edward VI. cap. 12.—2d. In a booth or tent, in a market or fair, in the day time or in the night, by violence or breaking the same; the owner or some of his family, being therein; 5 and 6 Edward VI. cap. 9.—3d. By robbing a dwelling house in the day time, (which robbing implies a breaking,) any person being therein: 3 and 4 William and Mary, cap. 9.—4th. By the same Act, (and see the Act 23 Henry VIII. cap. 1.) in a dwelling house, by Secondly; Larcenies to the value of five shillings; committed—1st. By breaking any dwelling house, or any outhouse, shop, or warehouse thereunto belonging, in the day time; although no person be therein, which also now extends to aiders, abettors, and accessaries before the fact: 39 Elizabeth, cap. 15; see also 3 and 4 William and Mary, cap. 9.—2d. By privately stealing goods, wares, or merchandise in any shop, warehouse, coach-houses, or stable, by day or night: though the same be not broken open, and though no person be therein: which likewise extends to such as assist, hire, or command the offence to be committed: 10 and 11 William III. cap. 23. Lastly; Larcenies to the value of forty shillings from a dwelling house, or its outhouses, although the same be not broken, and whether any person be therein or not; unless committed against their masters, by apprentices, under age of fifteen; 12 Anne, stat. 1. cap. 7. Piracy is felony against the goods of the Subject by a robbery committed at sea.—It is a capital offence by the civil law, although by Act of Parliament, it may be heard and determined, according to the rules of the common law, as if the offence had been committed on land. The mode of trial is regulated by the 28th of Henry VIII. cap. 15; and further by the Felonies against the Dwelling or Habitation of a man are of two kinds; and are denounced Arson and Burglary. Arson or Arsonry is a very atrocious offence—it is defined to be the malicious burning of the House of another either by night or by day. It is in this case a capital offence; but if a man burns his own house, without injuring any other, it is only a misdemeanor, punishable by fine, imprisonment, or the pillory. By the 23d of Henry the Eighth, cap. 1. the capital part of the offence is extended to persons, (whether principals or accessaries,) burning dwelling houses; or barns wherein corn is deposited; and by the 43d of Elizabeth, cap. 13, burning barns or stacks of corn in the four northern counties, is also made Felony without Benefit of Clergy. By the 22d and 23d of Car. II. cap. 7, it is made felony to set fire to any stack of corn, hay, or grain; or other outbuildings, or kilns, maliciously in the night time; punished with transportation for seven years. By the 1st George I. cap. 48, it is also made single felony to set fire to any wood, underwood, or coppice. Other burnings are made punishable with death, without Benefit of Clergy; viz. Setting fire to any house, barn, or outhouse, or to any hovel, cock, mow, or stack of corn, straw, hay, or wood: or the rescuing Burglary is a felony at common law; it is described to be when a person, by night, breaketh into the mansion of another, with an intent to commit a felony; whether the felonious intent be executed or not. By the 18th of Elizabeth, cap. 7, the Benefit of Clergy is taken away from The Offence; and by the 3d and 4th William and Mary, cap. 9, from Accessaries before the fact.—By the 12th of Anne, stat. 1, cap. 7, if any person shall enter into a mansion or dwelling house, by day or by night, without breaking into the same, with an intent to commit any felony; or being in such houses, shall commit any felony; and shall, in the night time, break the said house to get out of It is, without doubt, highly expedient that this Offence should be punished more severely than any other species of theft; since, besides the loss of property, there is something very terrific in the mode of perpetration, which is often productive of dreadful effects. The ancient laws made a marked distinction in the punishment, between this Offence, which was called Hamsokne, (and which name it retains at present in the Northern parts of this kingdom) and robbing a house in the day time. There are many other felonies which have been made capital (particularly within the present century) which do not properly fall within the class above discussed;—for an account of these the reader is referred to the general Catalogue of offences specified in a subsequent Chapter. The number of these various capital Offences upon which the judgment of death must be pronounced, if the party is found guilty, has been already stated to amount to above one hundred and sixty.—And yet if a full consideration shall be given to the subject, it is believed that (excepting in cases of Treason, Murder, Mayhem, and some aggravated instances of Arsonry) it would be found that the punishment of death is neither politic nor expedient. At any rate, it must be obvious to every reasoning It is indeed true, in point of practice, that in most cases of a slight nature, the mercy of Judges, of Juries, or of the Sovereign, saves the delinquent; but is not the exercise of this mercy rendered so necessary on every occasion, "a tacit disapprobation of the laws?" Cruelty, in punishment for slight Offences, often induces Offenders to pass on from the trifling to the most atrocious crime.—Thus are these our miserable fellow-mortals rendered desperate; whilst the laws, which ought to soften the ferocity of obdurate minds, tend to corrupt and harden them. What education is to an individual, the Laws are to Society. Wherever they are sanguinary, delinquents will be hard-hearted, desperate, and even barbarous. However much our ancestors were considered as behind us in civilization, yet their laws were infinitely milder, in many instances, than in the present age of refinement. The real good of the State, however, unquestionably requires that not only adequate punishments should be impartially inflicted, but that the injured should obtain a reparation for their wrongs. Instead of such reparation, it has been already stated, and indeed it is much to be lamented, that many are induced to desist from prosecutions, and even to conceal injuries, because nothing but expence and trouble is to be their lot: as all the fruits of the conviction, where the criminal has any property, go to the State.—That the State should be the only immediate gainer by the fines and forfeitures of criminals, while the injured party suffers, seems not wholly consonant to the principles either of justice, equity, or sound policy. Having said thus much on the subject of severe and sanguinary Punishments, it may not be improper to mention a very recent and modern authority, for the total abolition of the Punishment of death. This occurred in the Imperial Dominion, where a new code of criminal law was promulgated by the late Emperor, Joseph II. and legalised by his edict in 1787. This Code, formed in an enlightened age, by Princes, Civilians, and Men of Learning, who sat down to the deliberation assisted by the wisdom and experience of former ages, and by all the information possible with regard to the practice of civilized modern nations; with an impression also upon their minds, that sanguinary punishments, by death, torture, or dismemberment are not necessary, and ought to be abolished; becomes an interesting circumstance in the annals of the world. "The Emperor in his edict signed at Vienna the 13th of January, 1787, declares his intention to have been to give a precise and invariable form to Criminal Judicature; to prevent arbitrary interpretations; to draw a due line between criminal and civil offences, and those against the state; to observe a just proportion between offences and punishments, and to determine the latter in such a manner as that they may make more than merely a transient impression.—Having promulgated this new code, he abrogates, annuls, and declares void all the ancient laws which formerly existed in his dominions.—Forbidding at the same time every criminal Judge to exercise the functions of his office, on any but those who shall be brought before him, accused of a criminal offence expressed in the new code." This system of criminal law is so concise as to be comprehended in less than one hundred octavo pages. It commences with laying down certain general principles, favourable in their nature both to humanity and public liberty.—In determining the Punishments (which will hereafter be very shortly detailed) the following rules are laid down for the Judges. "The criminal Judge should be intent on observing the just proportion between a criminal Offence and the punishment assigned it, and carefully to compare every circumstance.—With respect to the Offence, his principal attention should be directed to the degree of malignity accompanying the bad action,—to the importance of the circumstance connected with the
The offences are divided into seven different classes. It is impossible, within the narrow compass of this Work, to enter into a particular detail of the various subdivisions of the Crimes and Punishments explained in this Code; which must be perused, in order to form a clear and comprehensive view of the subject. The following Specification therefore contains merely the heads or outlines of the System; which it is hoped may be found, from the mode of its arrangement, to convey to the reader both amusement and instruction. ABSTRACT | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Crimes. | Punishments. |
| High Treason. | |
| 1. Laying violent hands on the Sovereign, whether injury results from it or not. | Confiscation of property; imprisonment for not less than 30 years; and branding on each cheek with the mark of a gallows |
| 2. Attacking the Sovereign by speeches or writings. | Imprisonment 8 years, and not less than 5. |
| 3. Persons conspiring and taking up arms, or entering into alliance with an enemy, &c. are guilty of sedition and tumult. | Confiscation of Property and 30 years' imprisonment, with branding as above. |
Criminal Offences relative to the Sovereign and the State.
| 4. He who enters the house or abode of another, and uses violence against his person, goods, or possession, is guilty of open force. | Imprisonment, not less than 1 month, nor more than 5 years, and condemnation to the public works. |
| 5. He who violently resists the authority of a Judge, or Officer of Justice, although no wound result, is guilty of open violence. | Imprisonment not less than 1 month, nor more than 5 years; but where there is an injury and wounds, not exceeding 8 nor less than 5. |
| 6. Breach of trust, in a Governor, or ChargÉ des Affaires; neglecting the interest of the State, or betraying his Country, &c. | Imprisonment not less than 8, nor more than 12 years, and condemnation to the public works, and in aggravated cases, the pillory. |
| 7. A Judge, who from corruption or passion is guilty of an abuse of judicial authority. | Imprisonment not less than 8, nor more than 12 years, and condemnation to the public works, and in aggravated cases, the pillory. |
| 8. Accomplices attempting to corrupt a Judge. | Imprisonment not less than 1 month, nor more than 5 years; and condemnation to the public works. |
| 9. Forgery, by attempting to counterfeit public bills of the State which circulate as money. | Imprisonment not less than 30 years, and branding with a hot iron. |
| 10. Falsifying a public bill, by changing or altering it, or imitating the signatures. | Imprisonment not less than 12, nor more than 15 years, and condemnation to the public works. |
| 11. Coining false money, resembling the Coin of the Hereditary Dominions, or foreign Coin current by law; even though of equal weight and quality, or superior to the current Coin. | Imprisonment not less than 1 month, nor more than 5 years, with condemnation to the public works. |
| 12. Coining false money, by using a bad alloy; and by fraud giving false money the quality of good. | Imprisonment not less than 12, nor more than 15 years, and condemnation to the public works. |
| 13. Accomplices in fabricating tools for Coining. | Imprisonment not less than 8, nor more than 12 years, and condemnation to the public works. |
| 14. Assisting in the escape of a prisoner. | Imprisonment not less than 1 month, nor more than 5 years; and condemnation to the public works. |
| 15. Magistrates granting indulgencies contrary to law, &c. | Imprisonment not less than 12, nor more than 15 years; and deprivation of authority. |
Criminal Offences against Human Life and Bodily Safety.
| 16. Murder,—by wounding a man so that death ensues, including all accomplices. | Imprisonment not less than 15, nor more than 30 years; the latter in cases of consanguinity. |
| 17. Killing a man in self-defence, if the slayer exceed the bounds of necessity. | Imprisonment not less than 1 month, nor more than 5 years, and condemnation to the public works. |
| 18. Murder,—with an intention to rob or steal the property of the person, or other property intrusted to his care. | Imprisonment not less than 30 years, with the hot iron; in cruel cases, to be closely chained, with corporal punishment |
| 19. Assassination by stratagem, arms, or poison. | Condemnation to the Chain, |
| 20. Inducing another to commit Murder; by caresses, promises, presents, or threats; whether death is the result or not. | Imprisonment not less than 5, nor more than 8 years, and condemnation to the public works.—If murder is committed, the criminal shall suffer as a murderer. |
| 21. Duelling,—or challenging another to combat with murderous weapons on whatever pretence the challenge be grounded.—The person accepting the challenge is equally guilty, after agreeing to combat with murderous weapons. | If death ensues; condemnation to the chain for 30 years, where the survivor is the challenger. If the survivor be the party challenged, imprisonment, not more than 12, nor less than 8 years, and condemnation to the public works. If neither fall, imprisonment to the challenger, not less than 1 month, nor more than 5 years; and hard labour in the public works. |
| 22. Accomplices acting as assistants and seconds. | Imprisonment not less than 1, nor more than 5 years. |
| 23. A woman with child using means to procure abortion. | Imprisonment not less than 15, nor more than 30 years; and condemnation to the public works: augmented when married women. |
| 24. Accomplices advising and recommending abortion. | Imprisonment not less than 1 month, nor more than 5 years, and condemnation to the public works.—Punishment increased when the accomplice is the father of the infant. |
| 25. Exposing a living infant, in order to abandon it to danger and death; or to leave its deliverance to chance; whether the infant, so exposed, suffers death or not. | Imprisonment not less than 8, nor more than 12 years; to be |
| 26. Maiming by malignant assault. | Imprisonment not less than 1 month, nor more than 5 years. |
| 27. Suicide or self-murder, without any sign of insanity. | The body to be thrown into the earth by the executioner, and the name of the person and crime to be publicly notified and fixed on a gallows. |
Criminal Offences against Honour and Liberty.
| Imprisonment not less than 1 month, nor more than 5 years, and condemnation to the public works; with corporal punishment if the party receive injury. | |
| 29. Rape,—or forcibly, by associates, threatnings, or shewing weapons, overpowering and forcing a woman to submit, and shamefully abusing her by rendering her incapable of opposition. | Imprisonment not less than 3 years, nor more than 12, and condemnation to the public works. |
| 30. Accomplices aiding in the commission of a rape. | Imprisonment not less than 5, nor more than 8 years; and condemnation to the public works. |
| 31. Forcibly carrying a person out of the State without his will, or the consent of the Magistrate, enlisting men into foreign service, &c. | Imprisonment not less than 15 years, nor more than 30 years; augmented if the criminal is a natural-born subject. |
| 32. Forcibly, or by address, secretly carrying away a Minor past the years of infancy, under the care of parents or guardians, &c. | Imprisonment not less than 1 month, nor more than 5 years; if no injury result—otherwise imprisonment, not less than 8, nor more than 12 years, and condemnation to the public works. |
| 33. Forcibly, and by address, getting possession of any woman contrary to her will, obtaining her consent to marriage, or shameful debauchery, and carrying her from her abode; whether the design is accomplished or not. | Imprisonment not less than 5 years, and not more than 8; and condemnation to the public works. |
| 34. Forcibly carrying away a woman known to be bound by lawful marriage, or under protection of parents, and without her consent. | Imprisonment not less than 1 month, nor more than 5 years, and condemnation to the public works. |
| 35. Accomplices aiding and assisting. | The same. |
| 36. Unlawful Imprisonment, or keeping a person in confinement against his will and of his own private authority. | Imprisonment not less than 1 month, nor more than 5 years; augmented in cases of damages. |
Criminal Offences against Possessions and Rights.
| 37. Fraud.—Obtaining the property of another by stratagem, with an evil design on his possessions, honour, or liberty; forging title deeds or contracts, or altering the same. | Various, according to the degree of malignity—in general by imprisonment not less than 8, nor more than 12 years; and in smaller offences, not less than 5 nor more than 8; and condemnation to the public works. |
| Perjury in a Court of Justice, assuming a false name, &c. &c. bearing false witness. | The same. |
| Imprisonment not less than 1 month, nor more than 5 years, if unaccompanied by aggravating circumstances: but in aggravated cases, imprisonment not less than 5 nor more than 8; or not less than 8, nor more than 12 years. | |
| Imprisonment not less than 1 month nor more than 5 years, and condemnation to the public works. | |
| 40. Robbery—committed alone or in company, by using violence, or forcing a person to discover effects, on which the offender has felonious views. | Imprisonment not less than 15 years, nor more than 30; if wounds ensue, in consequence of the violence used. And if acts of cruelty or wounds, occasioning death, then the punishment of the chain additional. |
| 41. Incendiary—where one undertakes an action from which fire may ensue, or with intention to prejudice, or cause damage, with a view to profit by the disorder that takes place, he shall be considered as an incendiary, whether damage ensues or not. | Imprisonment not less than 8 nor more than 12 years; and condemnation to the public works: |
| Imprisonment not less than 5 nor more than 8 years, or condemnation to the public works; if the person with whom the offender contracts the second marriage was acquainted with the first.—If concealed, then imprisonment not exceeding 12 nor less than 8 years. |
Civil Offences that endanger the Life or Health of the Citizen.
| 43. Misadventure—where without any ill intention, by means of poisonous merchandize, or apothecaries selling adulterated drugs, any person suffers danger or injury. | Imprisonment from 1 month to a year, or condemnation to the public works, if the offender has caused any immediate damage; but if the cause of damage be remote, imprisonment from a day to 1 month. |
| 44. Damage to man or child, occasioned by riding or driving carriages with too much speed; or injury received by persons incapable of guarding against danger, occasioning a wound or death, which might have been prevented by due vigilance. | Imprisonment from 1 day to a month; to be augmented, in case death or wound should have resulted from the accident. |
| 45. Breaking Quarantine, &c. and fabricating false bills of health. | By a Military Court of Justice. |
| 46. Actions prejudicial to health, or nuisance, where the necessary precautions prescribed by the laws of health are neglected in cases of dead animals, distempers among cattle, &c. &c. | Condemnation to the public works, with or without fetters; either from 1 day to a month, or from 1 month to a year. |
Civil Offences that affect the Fortunes and Rights of Citizens.
| Confinement, corporal correction, and the augmentation of the punishment if requisite. | |
| 48. Using Frauds in playing at Games allowed by Law. | The pillory and condemnation to the public works, in atrocious cases; also imprisonment, from 1 day to a month, and restitution.—In case of foreigners, the pillory and banishment. |
| 49. Accomplices co-operating in such Frauds. | Imprisonment from 1 day to a month. |
| 50. Playing at prohibited Games. | A fine of 300 ducats, or imprisonment. |
| 51. Persons selling Merchandize at higher prices than fixed by the Police, or by false weight or measure. | Imprisonment from 1 day to a month, which may be augmented. |
| 52. Adultery. | Corporal correction, or imprisonment from 1 day to a month. |
| 53. Contracting illegal Marriages. (See ante, No. 42.) | Imprisonment from 1 day to a month, and condemnation to the public works. |
| 54. Servants receiving earnest, and engaging to serve more masters than one, or otherwise misbehaving. | Corporal correction or imprisonment from 1 day to a month. |
| 55. Masters giving servants a false character. | Imprisonment from 1 day to a month. |
| Condemnation to the public works; reserving the right to recompence to the party wronged. | |
| 57. Distributing or publishing Libels. | Condemnation to the public works; reserving the right of recompence to the party wronged. |
| 58. Actions by which danger by fire may be occasioned; such as smoking tobacco in a stable, timber-yard, &c. | Corporal correction. |
| 59. Acts of hasty petulance, leading to quarrels, assaults, and damages. | Imprisonment various, or condemnation to the public works. |
Civil Offences that tend to the Corruption of Morals.
| 60. Wickedly insulting the Supreme Being by words, deeds, or actions, in a public place, or in the presence of another person. | Detention in the hospital destined for madmen; where the offender is to be treated like a man out of his senses, until his amendment be perfect and assured. |
| 61. Disturbing the exercise of Public Worship, &c. | Imprisonment from 1 day to a month; to be augmented by fasting and corporal correction. |
| 62. Writing or Preaching against the Christian Religion, and Catholick Faith, &c. &c. Heresies, &c. | Pillory and Imprisonment, from 1 day to a month, or to a year. |
| 63. Committing indecencies in any public street or place. | Imprisonment from 1 day to a month, augmented by fasting. |
| 64. Attempting to seduce or insult women of reputation, by shameful debauchery, and using gestures, or discourses, tending to that purpose. | Imprisonment from 1 day to a month. |
| 65. Carnal Commerce by Man with Beast, or with a person of the same sex,—Sodomy. | Corporal Correction, and condemnation to the public works; and banishment from the place where the offence has been publicly scandalous. |
| 66. Consenting to shameful debauchery in his house; Keeping a Bawdy House. | Condemnation to the public works, from 1 month to 1 year; to be augmented when an innocent person has been seduced; second offence, the pillory. |
| 67. Any person, man or woman, making a business of prostitution, and deriving profit from thence. | Imprisonment from 1 month to a year; second offence, punishment double, and augmented by fasting and corporal correction. |
| 68. Dealing in Books, Pictures, or Prints which represent indecent actions. | Imprisonment from 1 day to 1 month. |
| 69. Disguising in masks, and obtaining admission into societies, and secret fraternities not notified to the Magistrate. | The same. |
| 70. Harbouring in dwellings persons not known to have an honest mean of living. | The same. |
| 71. Banished persons, from the whole of the Austrian Dominions—returning, &c. | Corporal correction, to be doubled at each successive return; and the offender to be banished from the Hereditary Dominions. |
In contemplating the various component parts of this Code, it is easy to discover that although some features of it may be worthy of imitation, upon the whole it is not suited either to the English constitution or the genius of our people. It is, however, a curious and interesting document, from which considerable information may be drawn; if ever that period shall arrive when a revision of our own criminal Code (in many respects more excellent than this) shall become an object of consideration with the Legislature.—At all events it strongly evinces the necessity of adapting the laws to the circumstances and situation of the Government; and of the people whose vices are to be restrained.
The total abolition of the Punishment of death (excepting in military offences cognizable by Courts Martial) is a very prominent feature in this Code; which appears to have been founded in a great measure on the principles laid down by the Marquis Beccaria, in his Essay on Crimes and Punishments: That able writer establishes it as a maxim, which indeed will scarcely be controverted—"That the severity of Punishment should just be sufficient to excite compassion in the spectators, as it is intended more for them than the criminal.—A punishment, to be just, should have only that degree of severity which is sufficient to deter others, and no more"—This authour further asserts, "That perpetual labour has in it all that is necessary to deter the most hardened and determined, as much
Doubtless, the fundamental principle of good legislation is, rather to prevent crimes than to punish.—If a mathematical expression may be made use of, relative to the good and evil of human life, it is the art of conducting men to the maximum of happiness and the minimum of misery.
But in spite of all the efforts of human wisdom, aided by the lights of Philosophy, and freed from the mist of prejudice or the bigotry of darker ages;—In spite of the best laws, and the most correct system of Police which the most enlightened Legislature can
