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phlet was intended to introduce and recommend. The laws which make certain kinds of small theft death, but are not executed, it may be fit to repeal simply on the ground of their
non-execution, or of their excessive and disproportioned rigour. But the clearest reasons for revising such laws are placed at an immeasurable distance from the perils of that vast speculation, whether death might not be left out of the penal code altogether. The author has not declared himself in any positive terms upon this bold theory, nor given any cause to believe, as far as we can see, that he is a convert to it. The avowal of such a theory would certainly have created a greater opposition to the measure he had in hand; and therefore his silence may pass for caution with those who like to improve to the utmost every circumstance in a debate, and find more meaning in a speech or pamphlet than lies open to view. But we frankly own that this pamphlet does not bring the subject before us; a few ambiguous intimations in it of a leaning towards a milder system of penal law, may only be expressive of that humane feeling which will prompt many to indulge a wish for more than they seriously think possible to be done in lessening the ills of life. This is one of the cheap, gratifications of every good mind, and of the wisest too, before it has strictly compared its ends and means together. Yet, since the subject has been started, and in connexion with the pamphlet, both by those who favoured the bills to which it was a prelude, and by those who were adverse to them, we shall not digress very far, if we propose a few hasty observations upon it.
They who speak as if they were for trying the experiment of a bloodless code of laws; if they should feel any scruple in taking the hazard of the theory upon their own wisdom, may avail themselves of some great names, Beccaria, Voltaire, and the Empress Catherine, as authorities for it. They are all foreigners, and perhaps there is a vulgar taste in many of our speculators at home to admire the wisdom of other countries, as we do their fashions; while the corps who have to officiate in the institutions of their country, carry their prejudices as far the other way. The right method would be to take foreign examples and opinions, as hints to be consulted, with this specific caution, that however strong in the general principles of reason, a stranger may seem to be, the case of our own country is not before him.
The Marquis Beccaria argues thus :— The sovereign power in the magistrate or laws is composed of those portions of personal liberty which the individual gives up to the state, that he may live under it: he makes the best bargain he can, and sacrifices only the smallest portion of his stock. The sovereign therefore can have no right over the life of a citizen—a right we may be sure he never
parted with. Besides, the citizen has no right over his own life, and therefore cannot, if he wished, give it to another.'*
The subtilty of this argument may perhaps entangle those who yet would never be governed by it.
When laws are really to be made, we hope that statesmen will follow their unphilosophical sense, in making them at once merciful and effective, and that they will employ the obvious means to counteract crimnes, without waiting to know whether those means are included in some clause of the surrender made to the public in the original compact-a compact which we highly revere, though we have never been able to interpret more than two or three of the leading articles contained in it.
But there is a fault in the argument of the humane philosopher which vitiates it even as an exercise of ingenious speculation. When men are supposed to negociate originally with the state, they do it as innocent persons; they surrender something, to obtain, what? protection as honest men, certainly; not licence to do wrong. Were they making a treaty for theft and murder, the state would raise its demands upon them, far beyond the minime porzioni; it would hardly admit them to treat except with a cord about their neck; or to speak more correctly, it could hold no correspondence with them in that character. In a word, crimes cannot be favoured in the conditions of a compact, the two parties in which are leagued together expressly against crimes: and if they are united for a just purpose, the power and discretion of the confederacy are justly exerted to obtain it.
His lively commentator (Monsieur Voltaire) writes upon the subject in another style. It is high time,' he says,' to tell the world that a man who is hanged is good for nothing; and that punishments which were intended for the good of society, should be useful to society. It is plain that twenty stout robbers, condemned to the public works, serve the state by their punishment; whereas when they are put to death, they benefit nobody but the executioner.'
But with Monsieur Voltaire's leave, the poor wretch who is brought to such an end, may be good for many things, and among others to shew how ill a philosopher may reason upon him. He may be good to save bis fellows from the same fate, and the life and property of honest men besides. Stat magni nominis umbra. If he cannot beat hemp, or repair the fortifications, he may teach
* His words are, 'Qual può essere il diritto, che si attribuiscono gli uomini di trucidare i loro simili ? Non certamente quello, da cui risultano la sovranità e le leggi. Esse non sono che una somma di minime porzioni della privata libertà di ciascuno. Chi è mai colui, che abbia voluto lasciare ad altri uomini l'arbitrio di ucciderlo? Come mai nel minimo sagrificio della libertà di ciascuno vi può essere quello del massimo tra tutti beni, la vita ? Dei Delitt. &c. S xvi.
hundreds to be honest and industrious, and that is no small use in a man whether living or dead,
-fungi vice cotis, acutum
Reddere quæ ferrum valet, exsors ipsa secandi.' Before laws are made or unmade on the principle of being useful to the state, we ought to have good definitions of être utile, servir, &c. and know whether those phrases always mean work done with a spade or a mallet. For anxious as we are to have it tried whether more humanity may not be infused into the English laws, we shall never think of enlarging upon the funds that may be raised by convict labour. Life is too sacred a thing to be either taken or spared on such considerations.
The Empress of all the Russias acquired the reputation of great tenderness for human life by a code of laws which contained no one capital punishment. Her predecessor Elizabeth had ordered justice to he administered in the same way. Elizabeth promised that no one should be put to death during her reign, and Voltaire
says she kept her word. *But unfortunately for the fame of her clemency, and the historian's exactness, there were many examples to the contrary; not to mention torture, and other cruel punishments worse than death, during her time. The edicts of a despotic government are one thing, its practice another; and Sir William Blackstone seems to have put too much faith in them when he described, as he has done with some encomiums, the total abolition of legal bloodshed under this princess, who yet was the most benevolent and forbearing of the sovereigns of Russia.
The constitutions of Catherine profess a deliberate abhorrence of taking away human life, which is ill supported by the events of her reign. She has condescended to transcribe into her Instructions for the Compilement of the Russian Code many of the sentiments of Beccaria, retaining his very words in her imperial homi. lies. We may remark in passing that her extracts from his essay are most judiciously chosen; for while she adopts his arguments against the use of death as a punishment, upon the account of its being less efficacious on the public feeling, than a more prolonged state of suffering ; she omits every thing he has said respecting the original compact, and limitations of the sovereign right, arising from it, as doctrines not equally good to be taught in all countries. +
See Coxe's account of Russia. Penal Code. + The imitation of a transcriber will be seen by reading cap. 16, dei Delitti e delle Pene; aud sect. 4. art. 10. in the Instructions pour dresser la Code de Russie.' We have some doubt as to the dates, but believe that Beccaria's work was published before that of the Empress.
It would be a happy thing to be able to borrow a precedent of lenity from the example of a despotic government; and as Russia stands indebted to the older states of Europe for her arts and manners, it would be a splendid compensation if she could give them a model of jurisprudence in return. But the phænomenon is too wonderful to be easily believed. An empire which only the other day was still in the woods, can hardly have become perfect so soon in the most difficult of all the sciences. And what is the report
of travellers as to the tried value of the code of Catherine? It is going daily into disuse. Or who will vouch for the fact of its having been truly administered even in her own life-time? Does her personal character permit us to suppose it? Is arbitrary power so faithful to the popular principles which it is known to assert in its official decrees and manifestos ? Or does it not hold a privilege of dispensing with the laws in favour of severity when occasion requires ? But be it so that this merciful code was actually administered, which it might very well be, where there was nothing more to be alleged against the criminal than his crime: we should be glad to see a report from the fifty provinces of the empire, whether men were at ease in their rights and property, safe in their homes, and slept securely under the superintendence of this indulgent system. Before we send a decemvirate of English lawyers to transcribe the imperial code at Moscow, it would be right to ascertain whether it has been found sufficient in the country which gave it birth. If to these suspicions, we add, that, although in Russia, death is nominally not the punishment, it often ensues from the mode in which other punishments are inflicted, we shall have little cause to envy then their plan of criminal law. Will humanity find her heart much relieved by turning from an execution to the sanguinary inflictions of the knoot, or the slow deaths that make up the eternal living obituary of the Siberian mines ? Nor should we forget that one of the most suspicious benefits of despotic power, is a pretence to make wrongs between man and man of easy atonement. This plausible lenity may be indifference to the welfare of those who ought to be more anxiously defended; or it may be a compromise of policy to be remiss in avenging the mutual wrongs of the subject, and severe in its own cause ; for however cheap penal justice may have been in Russia for private injury, in no country have offences against the state or the sovereign been visited with more sigual and unceremonious rigour. Upon the whole we expect to receive little assistance in the amendment of English law from a study of the Muscovian pandects.
Whatever the law chooses to inake a punishment, becomes so in fact, is the maxim* of Montesquieu, and copied also into the In* Esprit des Lois, liv, vi. chap, 9.
structions of the Empress. Montesquieu however was far from supposing that laws could be kept without the last and fatal sanction to enforce them; and he has exposed the weakness of two or three of the Greek Emperors who made general vows and resolutions of dispensing with it.
Shame and civil disabilities are among the best resources of a penal code-but we must take care—for
the law cannot absolutely create feelings, nor make a punishment of that which men themselves do not concur in making such. Those who are to be restrained by the law, must be first considered; for such as they are, such must the restraints be. If they are men who laugh at the conventional sway of opinion, and set civil life at defiance, there is no resource for the law, but in those feelings which men cannot renounce at will, the dread of pain, labour, and death. When the tigers are loose, it will be in vain to bring silken cords to bind them. Ineffectual coercion of crimes is in one sense even worse than impunity, for the offender is punished, and yet the peaceful citizen not protected, which is the end of punishment. The magistrate himself too becomes a party to the aggression, when he makes crimes a matter of eligible calculation to those who are ready to commit them.
If, then, a revisal of our criminal law should take place, with the view of making it more temperate in its enactment, and more correct and certain in the application, we hope the interests of humanity will be placed upon the same foundation with the public good. The theories which we have seen, that promised to gratify our mind with some prospect of an improved jurisprudence, have only amused us with a perverse substitution of evil; and given ussuch kind of satisfaction as the exchange of too much fierceness in the law into too much boldness in crimes was likely to inspire. If they divested the magistrate of some of his painful and invidious duties, to make him appear more humane, they did not make him appear more respectable when, by the abdication of his trust, he was to be a tender-hearted spectator of multiplied disorders and miseries. In listening to their illusive panegyrics, upon legal and judicial lenity, we have found the Utopian dream cruelly disturbed by the cries of its own victims.
To make any real improvement we should think a statesman ought to set aside all theory, and begin by assuming nothing ; that he should call before him an account of each law as it is now adminstered ; the prevalence of the offence; the habits and condition of those who may be guilty of it, or affected by it; and after consulting the voice of the courts, as expressed in their practice, as well as the judgment of individuals who sit in them, should proceed to solicit. in behalf of mercy such concessions as the actual state of the counVOL. VII. NO, XIII.