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ART. VIII. -Review ON PENAL LAW.
Letter, Report, and Documents, on the Penal Code, &c. Read in the Sen
ate of Pennsylvania, January 8, 1828.
This pamphlet, is written with much good sense and contains many valuable observations. We have placed its title at the head of this article, however, not with the intention of examining its contents, but simply as indicative of the subject on which we design to offer our views. Within a few years past, the public mind has been frequently agitated by discussions on the subject of penal law. Principles have been advanced, and practical inferences deduced, which, if generally adopted, would in our opinion, be subversive of the peace and order of society. The semblance of kindness and humanity which they wear, renders these speculations doubly dangerous; and we have therefore thought that a brief examination of the principles which lie at the foundation of penal jurisprudence, would not be uninteresting or useless at the present moment.
Penal Law is that great branch of jurisprudence, which treats of crimes and punishments, and the legal proceedings with which they are connected. It regards man solely in the character of an offender; and aims, by the infliction of punishment upon the guilty, to secure society at large. In its administration, it recognizes but two parties; the community which has been injured by the perpetration of the crime, and the criminal who has done the injury. The individual, immediately injured, is lost sight of in the wider clains of the people against the offender. In the state of nature, which some Utopian philosophers have affected to regard as an actual state, he would be the only party wronged, and the only party that could claim redress; and that redress would be demanded and obtained by himself, where his physical strength was superior to that of the wrong-doer. But in the present condition of man, as a part of the great social and political body, where his natural rights are merged in the duties he owes to society, and in the benefits which society confers upon him in return, he can no longer, in his own person, compel redress for violated contracts, or for his sufferings from the crimes of others. The question is not asked, what has the individual suffered—but what has the community suffered, from the wrong done to one of its members ? To this question, the penal laws of every civilized nation give a precise and definite answer in their respective definitions of offenses; and, wherever they define the offense, they also limit the punishment. This general principle, it is apprehended, is too clear to require further illustration. It finds at the same time no small Vol. II.
sanction to its justice in the nature of the common feeling, which is excited at the report of the commission of a crime. The first emotions are often those of sympathy for the sufferer, or of horror towards the culprit; but when the mind becomes composed and clear, the strong sense of the insulted majesty of the laws, of the outrage offered to the rights of society, of the wound inflicted on all through the violence directed against one, comprehends or absorbs all more private and personal considerations, and the final decision of the judgment is, that the laws must take their course, and the people be rendered secure from further danger. The manner in which criminal prosecutions are conducted, is technically descriptive of the case. In our own country,
6. The Commonwealth," “ The People,” “The State," are in the respective States, the party to the prosecution; and in Great Britain, “The King," the official organ and representative of the nation, sustains the same character. Through the regular forms of law, this party demands redress, and according to those forms, the accused-the other party, if found guilty, answers by his punishment for the wrong sustained.
As the community is the injured party, so it has also the right, and that exclusively, to regulate the kind and degree of punishment attending the crime. The penal laws of different nations aim at a strange diversity of objects in the penalties they inflict. Of these some are so cruel and sanguinary, that their only object appears to be vengeance. What other end does the rack, the wheel, or the faggot; the knout, the screw, or branding, answer? These punishments seem to be dictated, generally at least, by the very spirit of blood itself, and so far are they from vindicating justice, that they only arm her with a whip of scorpions. Instead of preventing crime, they foster compassion for the criminal, and those, who can safely connive at his escape, will willingly spare themselves the spectacle of his agonies. It is in fact giving the gratuitous sanction of law to human suffering, and in every just government will be regarded with abhorrence. That these bloodstained lines should deface the records of ancient nations, or of feudal Europe, is not surprising, but that any modern governments should still allow the blot, is their foul reproach. To the praise of later times however it undoubtedly belo:gs, that punishments are now comparatively mild; and benevolence will readily indulge the hope that there will be no retrograde course.
As the proper object of punishment is not vengeance, neither is it to render a compensation, or equivalent, to the injured individual or to society. This is the proper effect of civil actions. There, the party complains of a breach of contract, or an injury done which admits of compensation; and a jury decide the amount of his loss, and his adequate remuneration. But in criminal law the case is
wholly changed. Here, as has been already noticed, the individual complaining is forgotten in the community at large, and to them only must the accused answer. But what compensation does the community ask, and what can it receive? The mere endurance of pain, brief or protracted, slight or agonizing, can never restore the amount of happiness extinguished by the act of the criminal; it can have no effect upon that amount whatever. A house has been broken open and plundered, or set on fire; a citizen has been murdered : can the imprisonment for life or the execution of the burglar, the incendiary, or the homicide, restore the goods, the house or the life? Instead of compensating the evil suffered, it is increasing it; instead of neutralizing misery, it is doubling its amount; adding that of the guilty to that previously borne by his victim. A penal code then, which makes compensation the measure of punishment, is as indefensible as that which is dictated by vengeance.
But another construction may be given to the object of punishments; that it is to make an atonement for the crime. Will it sustain however a safer examination ? According to this scheme the offense is regarded as a debt, of which the endurance of the penalty is the payment. The criminal has undoubtedly violated obligations, but they are not obligations of the nature of a contract, they are those of a polítical and moral nature. The violation of such duties admits of no atonement. After enduring any amount of punishment, the offense still continues, the guilt still exists, and “ all the sweet waters of heaven cannot wash it out.” His sufferings do not annihilate his past transgression, the victim of his crimes remains the victim still; and if atonement only were sought, his penalty would be eternal in its duration. Can the traitor who has betrayed his country expiate his treason by his death; does the murderer, at the moment he falls from the gibbet, cease to be a murderer? Could their lives be restored, they would still be a traitor and a murderer, and no decree of law, no moral charm, could ever blot out the black enormity.
The proper, the real, object of penal law in all its departments, that which gives it sanction and strength from its commencing definition of crimes to its last sentence of punishment, is the same with the design and the object of every other class of laws, the same with the end of all social union and political fellowship: the general good of society. Government is formed and maintained, laws and tribunals are established, social obligations are created, man exists as a citizen or a subject; only to promote the common good. On what other foundation, we ask, can civil and political relations rest: from what other principle do they derive their binding force ? Resolve it into arbitrary power; and the moment that power is overthrown, men are reduced to a state of nature : ascribe it to immemorial custom and usage; and you at once destroy the possi
bility of change for the better, and perpetuate in many of the oppressed states of Europe that most farcical of all doctrines—the divine right of kings. Nor is the result different, if a compact between the government and its members, is supposed to furnish a basis for the obligation. For at the outset, no such compact exists. What subject of George the Fourth, or what citizen of the United States, ever dreamed of becoming a party to such a compact; or can tell the time, or the place, or the circumstances, or the conditions, of the compact? To talk of a mutual agreement between the government and the governed, from which each party may withdraw at pleasureone, which renders the bonds of society as feeble as a rope of sand, and which, if universally admitted and put into practice, would make man a savage or a wolf; is to speak a philosophy fit only for the region of dreams. No: the ties which bind man to his fellow man in ten thousand endearing forms; the chain which, let down from heaven, circles around our species, and connects each individual with every other member of the human family in one mighty obligation of benevolence, are not thus easily sundered and blown away. Their circuit is bounded only by the universe, and never will they be broken and dissolved, till the universe itself shall fade away. No matter how many of the subjects of this sacred obligation would wish to escape from or deny its force, no matter how many usurp the right of submitting to it or of tearing. it asunder at their own pleasure; a mightier power, a super-human energy, has formed the eternal bond, and man may as easily stop the tides of the ocean as fee from its irresistible attraction.
As the welfare of society, then, is the great principle which gives sanction to the infliction of punishments, so it regulates all their incidents in every particular whatsoever. The kind, the degree, the mode of infliction, these and all other incidents,acknowledge no other law. From this most simple proposition, this unit in moral as well as in legal arithmetic; a science, broad as the compass of civilized life, and embracing alike the most minute details and the profoundest principles, naturally arises. But our present purpose admits an examination of its influence only upon punishments. We assert then, that the legislature of every country has the unquestionable right to attach precisely such penalties to every offense, as the good of the community demands; and this demand is generally neither more nor less than this--the prevention of crime. For instance, will the crime of arson be most effectually prevented by the punishment of death; then capital punishments are lawful. Can burglary be prevented only by executing the burglar; then it is right to execute him. Is perpetual imprisonment the surest check upon forgery ; then sentence the culprit to end his days in a solitary cell. Will confinement for one or two years operate as effectually; then adopt the milder sentence. Let the sufferings
of the convict be mild or severe, transient or for life, let him forfeit none, or part, or all of his estate, let him come back to mingle with his fellow men, after the expiration of his sentence, untainted or infamous in the eye of the law : still, so long as the sentence has been nothing more than the safety of the people requires, the law which enjoins it, and the judge who pronounces it, stand clear of all accusation in the sight of heaven. It is in vain here for compassion with its kind but misjudging impulse, to suggest the keenness of the pain endured by the criminal, the inheritance of dishonor and poverty which he bequeaths to his children, and the hopes of his reformation which are thus finally blighted. All these arguments, if the victim of his own folly and iniquity were the only subject for legislation, would be powerful, nay decisive ; but the moment that the paramount claims of society at large interfere, they cease to be aught but idle words. The question becomes one of simple computation : shall the interests of one individual, or those of the nation conflicting with his own, turn the scale ; and, until a unit is numerically of more account than five or ten millions, the statute book gives the invariable answer.
An extreme question may however be stated, which would seem to limit the extent of the application. Would it be right to sentence a man to death for a libel, or a mere assault? In reply, weask another question, does the good of the community require it? We also answer, it does not require it, and therefore it would not be right. But suppose that the crime to be prevented, although injurious to the public peace and safety, is a less evil than the penalty decreed by law. 'We reply that the supposition answers itself. Where the suffering of the penalty is a greater calamity than the impunity of the offense, the welfare of society prohibits the infliction. The interests of the criminal harmonize, instead of conflicting, with those of the public, and it is only in cases of a conflicting character that the principle applies.
If the doctrine, we have thus endeavored to establish, is sound, an important inquiry naturally proposes itself; does the public good ever require that severest of penalties which almost all human codes have decreed, in other words, are capital punishments ever necessary
y? And here we feel bound to answer in the affirmative. Before attempting however to show their necessity, it will be proper to examine some of the opinions* which favor the negative; opinions, which deny their lawfulness, or which, while admitting their lawfulness, deny their expediency.
It is said by some writers upon this subject, that no man has yielded to others, or to the government under which he lives, the right to take away his life; that it is a measure of legal violence, and not
* See Beccaria on Crimes and Punishments, Livingston's Report on the plan of a penal code, etc.