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explore all those properties of the human mind,“ which," as Butler says, “are mere questions of fact, or natural history, not proveable immediately by reason, but by appeals to the external senses, or inward perfections," to survey the “ whole complex constitution of human nature," to examine both the absolute and relative qualities, and the separate and conjoint operations of our appetites, affections, and passions, to discover in them the causes, while in other quarters he looks to the consequences, of human action, to balance with the utmost wariness and utmost impartiality the force of every impelling and every restraining motive, and by the general result of such investigations to measure the chances of success in any particular application of capital, and, in truth, every severe punishment.-If, indeed, the tutelary motives, which Mr. B. himself has enumerated, had no existence at all, or what, in the view of the legislator, is equivalent, if their power, though irregular, were not very frequent, nor very salutary, every penal code ought to be sanguinary, like the systen, of Draco, or, it should rather be said, that with such a frame of the human mind, and in such a state of things as would be the effect of it, no appeal could be made by a lawgiver to moral approbation : no precise notions of the right to command, or the duty to obey, would prevail : no principles of justice would be embodied in the forms of law: no distinct traces of civil government would be discerned: no physical force could be regularly employed for the protection of the weak and controul upon the strong, nor, indeed, employed at all, but according to the resources and for the purposes of savage revenge, when resisting savage aggression. It is, I grant, a matter of fact, that such motives operate irregularly, and, according to my own observation upon mankind, it is also a matter of fact, that under certain circumstances they will afford some degree of aid to the legislator. Instead, therefore, of assuming broadly and without any qualification, that he must do without them, and depend wholly upon himself, it is proper for him to consider what those circumstances are under which he can do better with them. A penal statute, recommended even by such an enlightened person, must, like all other political regulations, be in the first instance experimental, guided, indeed, by analogies more or less applicable from past experience, but supported
only by probabilities, which more or less approach certainty, without the possibility of reaching it.
Infanticide is a most mischievous act. It calls for very powerful restraints from laws. It is practically to a great and happy extent restrained by the tutelary motives of which I have been speaking, and when those motives have been inefficacious, the lawgiver may, I think, consistently with the principle of utility, distribute the action, which now bears a general name, into different classes, as other criminal actions called by a common name have been distributed, and in fixing the penalties he may assign what to him shall appear a just value, to repetition, or any other circumstance of aggravation upon one side, and upon the other side, to anguish of soul from perfidious desertion, to exquisite sensibility to shame, or any other circumstance of extenuation. In child-murder, though extenuating circumstances, alas ! are rarely made a ground for mercy from the prerogative of the Sovereign, they often find their way to the compassion of jurymen, and produce impunity as the only alternative they can employ for death. I love that compassion ; but I lament that impunity. I wish to make every possible provision against uncertainty in the administration of the laws, by the increased appearance of equity in punishments. I believe, that by a very enlightened and very attentive legislature, circumstances which extenuate and circumstances which aggravate guilt, might in many cases be calculated with precision, greater than they hitherto have been, and quite sufficient for all the best purposes of legislation.
If the frequency of a crime be often admitted as a justification of increased severity, may not the rarity of it, when compared with the tendency of opportunities, or the force of temptations to produce it, with the struggle of moral motives to prevent it, and with the number or causes of other offences, be sometimes considered as a reason for mitigation of punishment-especially where, as I have observed of infanticide, a solitary action in a very few instances leads us to infer any radical wickedness of heart in the agent?
“ Illam ego non tulerim, quæ computat, et scelus ingens
* Juvenal, Sat. vi.
But this deliberate and execrable cruelty in a mother to her offspring, widely differs from the motives which actuate the generality of those unfortunate females whom the English law puts to death for infanticide.
Reflecting upon the argumentative and unanswered, but unavailing speech of Mr. Adam upon the power vested in the courts of Scottish judicature : on the sentence of transportation which was passed and executed upon some state criminals at the elose of the last century, and on the resistance which in certain quarters has been since made to the further introduction of juries into Scotland, I did not feel much surprise at one part of the information which lately reached me. But has not society witnessed already too many proofs of an observation which nothing but my conviction of its truth and importance could have induced me to communicate-too many instances, where professional men have been more impelled to act from personal temperament, not very favourably affected by personal experience, than from large and exact views of human nature—where they appear to have been more skilful in the capricious distinctions and arbitrary assumption of jurisprudence than in the profound investigations and simple results of moral science-where they have been more accustomed to provide against local and temporary, than permanent and nationals evils--more inclined to propose measures of rigour than lenity—more qualified to direct a jury by the authority of fixed rules, than to guide a legislative body by the light of general principles? Yet my anxious hope is, that the Bill of which I am speaking will not be passed by an English Parliament in the nineteenth century, without clear and numerous proofs of the most unequivocal and most urgent NECESSITY.
Before I quit the painful but interesting subject of our Penal Code, I think it my duty to remark, that in the appointment of Judges something more than ordinary attention seems within these last five or six years to have been shewn to professional knowledge in the persons promoted, to solid judgment, to integrity, and to humanity, without any recommendation from party compliances, or any aid from family connections. Great, too, is the satisfaction I feel in the opportunity I now have for stating, that on several of our late circuits some of our venerable minis
ters of justice are said to have sympathized with the general and growing sense of their countrymen on the side of clemency, and to have left fewer condemned criminals, than was formerly the case, for execution. This occasional interposition of mercy indicates a progressive but favourable change in quarters where change was much to be desired, and is much to be commended. It constitutes an experimental proof, that in order to answer their best ends in society, and to acquire their proper authority over the minds of men, the laws may be revised, and the penalties now inflicted by them in many respects mitigated. It will leave room for grave and full deliberation upon a Penal Code to be completely amended; and as to the alleged inconveniences of a total repeal, they may be easily remedied by an express declaration, that the old laws should remain in force for six, or at the utmost twelve months, after the enactment of the new.
He that should have the magnanimity to propose such a repeal, would not, I hope, be discouraged by the menacing and invidious allusions which, on some discussions on the Test Act, a deceased Prelate once made to the practice of putting a halter round the neck of the man who should propose a new law, and keeping it there, that he might escape or perish according to the issue of the deliberation.* In the last mentioned place it may be worth while to remark, Stobæus ascribes to Zaleucus the same relations which Diodorus Siculus t assigns to Charondas : and Wesseling in a note | supposes, with some probability, that on this, as well as other occasions, Diodorus bad met with a corrupted manuscript, in which he found the name of Charondas errvneously substituted for that of Zaleucus.
The same legislator, whether Zaleucus or Charondas, seems to have acted nearly upon the same general principles which Beccaria held, on the inflexibility of laws yet unrepealed, and on the mischiefs which arise from the subtle and licentious interpretations of private persons. And it must be owned that in some cases Judges, by their proneness to employ such interpretations, virtually assume the office of legislators, defeat the original intentions of those who enact statutes, and give rise to error and
* Vid. Stobæum, Serm. 49 and 37. + Lib, xii. parag. 17. edit. Reimar.
# Vol. i. p. 489.
perplexity in the minds of those who are required to obey them. The whole passage in Dionys. Halicarnass. deserves to be quoted, and it runs thus :
Προσέταξεν εκ πάντος τρόπου πείθεσθαι το νόμο κάν ή παντελώς, κακώς γεγραμμένος. Διορθoύν δε συνεχώρησε τον χρείαν έχοντα διορθώσεως. Το μεν γάρ ηττάσθαι υπό νομοθέτου καλών είναι υπελάμβανε το δε υπό ιδιώτου παντελώς άτοπον, και εί επί το συμφέρονται γίνεται. Και μάλιστα του τοιούτου τρόπου τους εν τοίς δικαστηρίοις των παραγενομηκότων προφάσεις και διανοίας αντί των ρητών εισάγοντας εκώλυσε ταϊς ιδιάις ευρεσιλογίαις καταλύειν την των νόμων υπεροχήν.**
I have great pleasure in concluding what I have written on a very important subject, with the statement of a fact which cannot fail to be interesting to those who are adverse to the frequency of capital punishments. My very ingenious and benevolent friend, Mr. Basil Montague, has sent to the press a large collection of the opinions which many distinguished writers upon the Penal Codes of England and other countries have delivered in the defence and recommendation of other punishments, as substituted for death. If some specimens with which he has lately favoured me had come into my hands before my own remarks had gone to my printer, I should have derived from them much valuable information, and especially upon the successful endeavours of Mr. Bentham to furnish a better scale than we have hitherto had for measuring guilt and apportioning punishment. Basil Montague, I am told, has been much commended by professional men for his publications upon subjects connected with the studies and duties of his profession. I esteem him very highly for his literary attainments and his personal virtues. Gladly, too, would any advocate for the reform of our Penal Code acknowledge such a man a συνεργός του κόπου της αγαπης.
may be worth while to add, that, in the next paragraph, we have the well-known story of the unfortunate offender, who, having lost his only eye, as a punishment for destroying one eye of a man who had two, stood with a halter about his neck, and pleaded successfully for the repeal of the Lex Talionis.