Page images

Reflector-No. III.

would naturally be the satisfaction of the injured party. This however it would soon be found, could not always be accomplished from the nature of the offence; and hence arose the distinction between punishments by which the offender was required merely to make restoration to the sufferer-and those by which the claims of public justice were satisfied, and a preventative example held out to others, without at all benefiting the injured person. This distinction being by analogy extended to the offence, constitutes the difference between public and private injuries; the former of which are the more atrocious, in so far as they are an infringement on public decency, and public This will be best illustrated by examples. peace.

Suppose a neighbouring proprietor when cutting down a wood adjoining the marches of my estate, should cross over, and help himself to some of my trees-the injury is private, in so far as it occasions loss to no one but myself; and I may have pecuniary redress by bringing an action before the proper courts of law. But suppose, on the other hand, that I am forcibly attacked by a ruffian, and robbed by him on the highway, or in my house, the injury is a public one; for it is evident that were such crimes not punished in a most exemplary manner, the property, nay even the lives of the community would be exposed to the fearless invasion of the daring plunderer, and the lawless assassin. In order therefore to make a signal example of so atrocious an offender, the king, as head of the community, takes up the cause of the injured person and prosecutes, not so much to obtain for him restitution of his property, or redress for the personal damage he has sustained, as to put in force against the criminal, those laws which attach an exemplary punishment to the offence of which he may be convicted.

Such is an illustration of the difference between a private and a public injury, and as from this it appears that it is chiefly for the latter of these, that legal punishments are appointed, it is to them, that our attention will now be directed.

Every crime, whether of omission or commission, is a viola-, tion of those laws by which society is regulated, and its interests maintained. Now both of the instances just stated answer equally to this definition; so that the greater enormity of the latter does not consist in its being more contrary to law, but merely in its being more widely detrimental in its consequences. This is obvious, as a public crime not only implies the exis

Reflector-No. III.

tence of an atrocious private injury, but also of one, whose consequences may prove directly fatal to the best interests of the community at large; and as such meriting a more serious infliction of punishment. In well regulated societies the interests of the whole must ever be preferable to those of the indi-' vidual; and it is in this view that the infringement of the rights of society occasioned by a major or public offence, is deemed of such importance as to swallow up entirely the minor or private one, so that satisfaction is sought for it alone. Thus when a person breaks into my house, and after assaulting me and injuring me severely, carries away property to a considerable amount; if apprehended, he is tried and found guilty; still however many circumstances may prevent me from recovering the stolen goods, and neither the death nor banishment of the robber can at all recompence me for the loss of my property, or the bruises I may have received.

Since therefore compensation for the personal injury is not the object of punishment, we must look for it in the example it holds out to others to serve as a preventative, to such misdemeanours, and it is in this light accordingly that we shall conduct our remaining remarks.

Here then we would submit it as a general principle, that the nature and degrees of punishment must vary in different countries according to the Government, manners, civilization, and many other circumstances equally accidental. The truth of this must at once strike any one; and it seems equally certain, that as similar variations may often be traced in different periods in the history of the same people, it is but justice that the alterations in the penal code of the country should correspond to


In the first ages of uncultured barbarity the catalogue of crimes is but small, and personal satisfaction is generally sought by the injured party against the injurer. The evil of this prac tice soon would become obvious, while reprisal is the standard of punishment, the ends of justice must often be frustrated, and its dictates lost in the impetuosity of unbridled vengeance. Family feuds would be also often occasioned by this practice, and the cause of the injured individual would become the common cause of his connexions and clansmen."

When Jurisprudence began to be studied as a science, and the principles on which it is founded were fully understood, a

Reflector-No. III.

better rule would be substituted for these lawless exertions of power, and although in a few instances the "Lex talionis" is still in use, even among polished nations, yet it is employed only under such modifications as expediency has dictated.

To illustrate this-Wilful murder is in most countries expiated by the blood of the homicide; and although this is the most atrocious of human crimes, it is not the only one which is visited by capital punishment. Our law makes the forger as obnoxious to death as the murderer-but it does not by aby means put the two crimes upon the same footing as to their atrocity-but merely proceeds upon the principle, that in a commercial country, forgery is a crime so pernicious in its consequences, as to merit capital punishment; and that as death is deemed the most severe infliction which the publi feelings of a polished nation can permit, it also ought to be appointed for the murderer. In this, as in many parallel instan ces, which might be mentioned, the rule of retribution is departed from, and offences, unequal in their enormity, are without inconsistency made to suffer a like punishment.

This system seems to be sometimes required necessary in every society, but the same misdemeanours are far from being alike injurious in every situation. In those nations in which trade and commerce are little known, or at least practised to a very limited extent, forgery is a crime to which there are few tempations, and one whose consequences can be felt only to a limited extent, it therefore may properly enough be ranked among the petty crimes. But in a country like our own, where every situation in life presents a thousand inducements to its commission, and offers numerous occasions where immense advantage would follow it with but little risk of detection, it becomes absolutely necessary that some signal infliction should be provided for it, to deter the unprincipled defrauder.

Again, what at one time is justly considered an offence of much enormity, may at another period be deemed entirely blameless and hence, it seems to be consistent with equity that an occasional revision of the penal code of a nation should be made. The Romans during the existence of their republic had a rule on this subject worthy of imitation. Every penal enactment of their Senate was deemed obsolete, unless renewed each successive year. Such a measure would perhaps be too much of a Republican tendency, to succeed in a government like

Reflector No. HI.


ours; but if the principle were to be properly directed, and ap plied with discernment, our penal code might no longer hold us out to other countries, as a cruel and bloodthirsty race. only just objection which can be urged against it is, that it savours too much of innovation, every tendency to which carefully ought to be crushed in well regulated governments; and we believe that it is the prevalence of this idea that has prevented this measure, or some other of a similar tendency, from being carried through long ere this. The objection is certainly upon the whole correct, and ought to have its due weight; but when pushed so far, to the man of liberal views it must seem the effect of a narrow-minded policy: and the proposed end, might easily be accomplished in such a way as to leave no room for any such consequence as it is meant to guard against. The alteration we refer to would not by any means cause such an essential change in the present practice as is generally supposed, as the greater part, nay perhaps the whole of the justly obnoxious statutes although still ranked with the laws of the land, are fallen into dissuetude. There are many persons who think thạt our penal code as at present practised is by much too severe; from these we would differ, and we state it as our conviction that if properly administered in regard to its more severe visitatations, it is admirably adapted for the suppression of crimes. Such an opinion may after the sentiments we stated above, appear paradoxical, and even contradictory, but it must be recollected that we vindicate those laws, and those only which are now in use- -while we decidedly condemn the method in which they are put in practice. Rigorous laws, leniently enforced are much less effectual than the most gentle. Punishment is no longer the preventative of crime, and the frequency of escape encourages the offender, There are many who wonder at the constant, and alarmingly rapid increase of general delinquency in our country, notwithstanding the sternness of law; and ignorantly and absurdly suppose that this very sternness is the active cause of an effect, to them inexplicable on any other principles. Such persons, if they take the trouble to reason at all on the subject, do so on the most shallow and erroneous grounds. They puzzle themselves to conceive how any man can be fool-hardy enough, to become a robber or a forger, when he has certain death set before him as the result of detection But they do not consider how many favouring circumstances unite

Reflector-No. IJI.

Chances are infi

in protecting-in encouraging the offender. nitely in favour of his avoiding detection; even although he be caught, he may have the good fortune to make his escape from Justice; if he come to be tried, deficiency in evidence the ability of his counsel,-testimonies of former good character— or the mercy of the jury, may probably save him; and supposing all these, and other accidental chances go against him, he still has good grounds of hope from the clemency of the crown. As to this last statement, a single instance will serve to show its general correctness. At one of the country assizes in England (in Lancashire we believe) a few months ago, out of a very long list of criminals, upwards of sixty were capitally condemned-and of that number only ten were executed—a fact which must go a great way in inciting the experienced offender, to the commission of the greatest atrocities.

We have hitherto confined ourselves almost entirely to capital punishment-it was our intention now to have considered some others of those which have been instituted by the penal codes of different nations-but our remarks have already run out to an undue length.

What remains of our subject may perhaps form the ground work of another paper.

12th August, 1819.

A. V. R.



"The union of the sexes is an ordination coeval with the existence of the human race, and claims a very distinguished place amongst the arrangements of the Author of nature. The connexion has been celebrated among all nations with a degree of pomp correspondent to their state of moral and political cultivation; and is uniformly regarded as an era of much importance in individual history. There are, it is true, varieties in the ceremony, and perhaps various opinions entertained as to the sanctity of matrimonial vows, though we are taught to believe that in the lesson delivered to our first parents, there could exist little difference in the performance of a ceremony where intricacy was prevented by a set of plain regulations

« PreviousContinue »