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MORAL AND POLITICAL
PH I L OS O P H Y.
OF CRIMES AND PUNISHMENTS.
The proper end of human punishment is not the satisfaction of justice, but the prevention of crimes. By the satisfaction of justice, I mean the retribution of so much pain for so much guilt, which is the dispensation we expect at the hand of God, and which we are accustomed to consider as the order of things that perfect justice dictates and requires. In what sense, or whether with truth in any sense, justice may be said to demand the punishment of offenders, I do not now inquire; but I assert, that this demand is not the motive or occasion of human punishment. What would it be to the magistrate, that offences went altogether unpunished, if the impunity of the offenders were followed by no danger or prejudice to the commonwealth? The fear lest the escape of the criminal should encourage him or others, by his example, to repeat the same crime, or to commit different crimes, is the sole consideration which authorises the infliction of punishment by human laws. Now that, whatever it be, which is the cause
and end of the punishment, ought undoubtedly to regulate the measure of its severity. But this cause appears to be founded, not in the guilt of the offender, but in the necessity of preventing the repetition of the offence : and hence results the reason, that crimes are not by any government punished in proportion to their guilt, nor in all cases ought to be so, but in proportion to the difficulty and the necessity of preventing them. Thus the stealing of goods privately out of a shop may not, in its moral quality, be more criminal than the stealing of them out of a house; yet being equally necessary, and more difficult, to be prevented, the law, in certain circumstances, denounces against it a severer punishment. The crime must be prevented by some means or other ; and, consequently, whatever means appear necessary to this end, whether they be proportionable to the guilt of the criminal or not, are adopted rightly, because they are adopted upon the principle which alone justifies the infliction of punishment at all. From the same consideration it also follows, that punishment ought not to be employed, much less rendered severe, when the crime can be prevented by any other means.
Punishment is an evil to which the magistrate resorts only from its being necessary to the prevention of a greater. This necessity does not exist when the end may be attained, that is, when the public may be defended from the effects of the crime, by any other expedient. The sanguinary laws which have been made against counterfeiting or diminishing the gold coin of the kingdom might be just until the method of detecting the fraud, by weighing the money, was introduced into general usage. Since that precaution was practised, these laws have slept ; and an execution, under them, at this day, would be deemed a measure of unjustifiable severity. The same principle accounts for a circumstance which
has been often censured as an absurdity in the penal laws of this, and of most modern nations, namely, that breaches of trust are either not punished at all, or punished with less rigour than other frauds.- Wherefore is it, some have asked, that a violation of confidence, which increases the guilt, should mitigate the penalty ? -This lenity, or rather forbearance, of the laws, is founded in the most reasonable distinction. A due circumspection in the choice of the persons whom they trust; caution in limiting the extent of that trust; or the requiring of sufficient security for the faithful discharge of it; will commonly guard men from injuries of this description ; and the law will not interpose its sanctions to protect negligence and credulity, or to supply the place of domestic care and prudence. To be convinced that the law proceeds entirely upon this consideration, we have only to observe, that where the confidence is unavoidable,—where no practicable vigilance could watch the offender, as in the case of theft committed by a servant in the shop or dwelling-house of his master, or upon property to which he must necessarily have access,—the sentence of the law is not less severe, and its execution commonly more certain and rigorous, than if no trust at all had intervened.
It is in pursuance of the same principle, which pervades indeed the whole system of penal jurisprudence, that the facility with which any species of crimes is perpetrated, has been generally deemed a reason for aggravating the punishment. Thus, sheep-stealing, horse-stealing, stealing of cloth from tenters or bleaching-grounds, by our laws, subject the offenders to sentence of death: not that these crimes are in their nature more heinous than many simple felonies which are punished by imprisonment or transportation, but because the property, being more exposed, requires the terror of capital punishment to protect it.
This severity would be absurd and unjust, if the guilt of the offender were the immediate cause and measure of the punishment; but is a consistent and regular consequence of the supposition, that the right of punishment results from the necessity of preventing the crime : for, if this be the end proposed, the severity of the punishment must be increased in proportion to the expedience and the difficulty of attaining this end ; that is, in a proportion compounded of the mischief of the crime, and of the ease with which it is executed. The difficulty of discovery is a circumstance to be included in the same consideration. It constitutes, indeed, with respect to the crime, the facility of which we speak. By how much therefore the detection of an offender is more rare and uncertain, by so much the more severe must be the punishment when he is detected. Thus the writing of incendiary letters, though in itself a pernicious and alarming injury, calls for a more condign and exemplary punishment, by the very obscurity with which the crime is committed.
From the justice of God we are taught to look for a gradation of punishment exactly proportioned to the guilt of the offender : when, therefore, in assigning the degrees of human punishment, we introduce considerations distinct from that guilt, and a proportion so varied by external circumstances, that equal crimes frequently undergo unequal punishments, or the less crime the greater ; it is natural to demand the reason why a different measure of punishment should be expected from God, and observed by man; why that rule, which befits the absolute and perfect justice of the Deity, should not be the rule which ought to be pursued and imitated by human laws. The solution of this difficulty must be sought for in those peculiar attributes of the Divine Nature, which distinguish the dispensations of Supreme Wisdom from the proceedings
of human judicature. A Being, whose knowledge penetrates every concealment, from the operation of whose will no art or flight can escape, and in whose hands punishment is sure; such a Being may conduct the moral government of his creation in the best and wisest manner, by pronouncing a law, that every crime shall finally receive a punishment proportioned to the guilt which it contains, abstracted from any foreign consideration whatever; and may testify his veracity to the spectators of his judgments, by carrying this law into strict execution. But when the care of the public safety is intrusted to men, whose authority over their fellow-creatures is limited by defects of power and knowledge ; from whose utmost vigilance and sagacity the greatest offenders often lie hid; whose wisest precautions and speediest pursuit may be eluded by artifice or concealment; a different necessity, a new rule of proceeding, results from the very imperfection of their faculties. In their hands, the uncertainty of punishment must be compensated by the severity. The ease with which crimes are committed or concealed, must be counteracted by additional penalties and increased terrors. The very end for which human government is established requires that its regulations be adapted to the suppression of crimes. This end, whatever it may do in the plans of Infinite Wisdom, does not, in the designation of temporal penalties, always coincide with the proportionate punishment of guilt.
There are two methods of administering penal justice.
The first method assigns capital punishment to few offences, and inflicts it invariably.
The second method assigns capital punishment to many kinds of offences, but inflicts it only upon a few examples of each kind.
The latter of which two methods has been long adopted in this country, where, of those who receive