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criminal should still incur the pecuniary mulct, but the money paid into the public treasury, or cast into the deep. Is it not evident, that our government would nevertheless move on without any material alteration ? Persons inclined to violate the laws are certainly not any more deterred from crime by the fact, that the penalties they may incur, will have a tendency to reform them, or will be applied to mitigate the loss of the injured party. Is it not clear then, that it is the fear of inconvenience to themselves from penalties either corporeal or pecuniary, that deters men from violating the persons or property of others; and, does it not as clearly follow, that nineteen-twentieths of the good resulting from penalties, would still be accomplished, if reformation and restitution were entirely neglected ?
But let the hypothetic case be inverted, let us suppose the first design of penalties, the enforcement of obedience to the law on the whole community, to be abandoned. Let it be published, that no punishment will be inflicted on transgressors to deter others from crime, but that the government will make restitution to the injured party, and the criminal be taken into an abode designed only for his reformation, and that no other correction will be inflicted than shall be found necessary to effect his reform ; and what would the common sense of mankind ex pect as the result? Would not the entire character of our civil institutions be changed ? Would not laws be converted into mere hortatory admonitions, left to the optional observance or transgression of each individual ? Would not the majesty of the laws be prostrated, would not the person and property of the community become the prey of the more vicious, and all government speedily terminate ? With these views the writer is constrained to regard as incorrect the opinion of those highly respectable authors,* who place the reformation of the criminal before the public welfare, in the catalogue of penal designs. If, as Mr. Dymond maintains the spirit of the New Testament leads us to regard this end of punishments, (viz. reformation of criminals), “as paramount to every other," + how can we reconcile the fact, that this same volume represents to us the God of love himself as inflicting on the finally impenitent eternal punishments, punishments whose nature is represented as
• Dymond's Essays, p. 327. Professor Upham's interesting and valuable work, the “Manual of Peace,” p. 227.
† Dymond's Essays, p. 327.
retributive, not remedial, and the eternity of whose duration forbids the idea of reformation ; unless we suppose that God would continue to inflict the punishments of hell upon reformed and holy beings, who have become qualified for heaven! If according to the spirit of the gospel the primary design of all punishment must be reformation, then this character must belong also to the future punishment of the wicked, and the amount and duration of it will depend, not as the gospel asserts, " on the deeds done in the body," that is, done in this life ; but on the pliancy of the sinner when enduring the pains of hell, and the “gulf” which the Saviour teaches us in the language of father Abraham is “impassable,” will nevertheless be passed by all who reform amid their sufferings. These inferences though perhaps admitted by Mr. Dymond, (a member of the Society of Friends), are by no means conceded by professor Upham and other highly respectable and orthodox advocates of the position whence they are deduced. Plausible evasions of the inference may also easily be presented ; yet the writer does not perceive any, which will remove all difficulties from his mind.
3. The inquiry, which of the remaining two designs of penalties claims precedence in the eyes of the government, as its more appropriate work, restitution or reformation, is comparatively of inferior moment. If (as we think, has been established) the primary design of penalties is to deter the whole community from crime; if this influence is exerted on every member of the community in as great a degree as on the criminal anterior to his transgression ; if the omission of this design by its government would speedily plunge any nation into anarchy and ruin, whilst the omission of both reformation and restriction as motives to influence the public mind, would not materially affect the operations of government; it is evident that the latter two designs are incalculably less important than the former. Yet should instances occur, which we do not suppose possible, in which legislative provision for restitution to the injured party, would preclude attention to the reformation of the criminal by the civil authorities, we are inclined to the opinion, that in the legislative provisions of the government, restitution should have precedence. This would seem reasonable from the very design of human governments, which is to protect the rights of all; and because the rights of injured and innocent members of the community, ought certainly to be preferred to those of criminals who have violated
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the laws and forfeited their claims to the privileges of citizens. It is an obvious and self-evident duty of government to protect the person and property of its obedient citizens; but the duty to reform criminals, though undisputed by us, is certainly more remote, and less obviously involved in the elementary principles of civil government. Again, the second design, restitution, ought not to be omitted in order to secure the third, reformation ; because its retention is in many cases, admirably adapted to promote the first design, which is incalculably more important than the third. Few things, we should suppose, would more powerfully deter indolent, wicked and malicious men, from theft, robbery and murder, than the certainty (without the possibility of the paralyzing prospect of reprieve!) that they would be compelled, by hard labor, to earn, and in addition to the costs of prosecution, repay the property stolen, or to support during life the individuals whom his violence disabled, or the family which legally depended on him for support. Laws judiciously and faithfully carrying out this principle, would go very far to put an end to theft and robberies, and merit far more attention from our legislators than has hitherto been devoted to this subject.
4. We are thus naturally conducted to the all important inquiry, Which of the two proposed penalties for deliberate murder, death or imprisonment for life, is best calculated to effect the primary and incalculably most important design of penalties, viz. the welfare of the whole community, by deterring men from crime, and thus supporting the influence or the honor of the law ?
Although the establishment of the previous positions, throws important light on this inquiry, and qualifies us for a more enlightened and safe investigation of it, it by no means finally decides this question. Persons may go with us on all the previous points, and yet differ as to the relative efficiency of these two modes of punishment for deliberate murder. Indeed, we ourselves regard the evidence of these positions, as different in its nature and stronger in its influence, than that which must decide the inquiry now before us. The former are deduced fairly from the elementary and admitted principles of all good government human and divine. The latter must partly depend on experiments, few as yet in number and scarcely perfect in probative power.
In weighing the relative influence of these two modes of
punishment in deterring the community from crime, we ought not necessarily to adopt either mode in connexion with all the circumstances, with which it has been combined in any country, but we are at liberty to contemplate each in the light and under supposed circumstances most favorable to its efficacy. Whilst therefore it is admitted on the one hand, that a spirit of revenge* should never be indulged against a criminal, nor any suffering be inflicted, beyond the exact demand of penal justice, it is equally evident that the penitentiary system may be divested of much of its influence in deterring the community from crime, if we permit an ill-judged humanity to forget the primary design of penalties, and convert our prisons into abodes of comfort and repose. If the penitentiary system is to exert its full influence it must ever remain “a terror to evil doers ;" criminals must have merely such food and clothing as are necessary for health, and every facility for moral reformation should be tendered them; but they ought to be compelled to labor and labor hard, under constant supervision to prevent conversation between them by day, and be kept in solitary confinement at night. It is a well ascertained fact, that prisons in which convicts are herded together, and not required to labor, are pleasant abodes to criminals, and many after having served out their term, have reiterated crime for the express purpose of regaining admission to their former abodes! Confinement for life as a penalty for deliberate murder, is therefore not worthy of being named, unless it be combined with meagre diet, hard labor, rigid supervision by day and solitary confinement at night.
Seneca has not unaptly remarked in regard to corrective punishments in general: Ipsos (malos) facilius emendabis minore poena: diligentius enim vivit, cui aliquid, integri superest.
Nemo dignitati perditæ parcit. Impunitatis genus est, jam non habere poenae locum. Civitatis autem mores magis corrigit paucitas animadversionum : facit enim consuetudinem peccandi multitudo peccantium, et minus gravis nota est, quam turba damnatorum levat; et severitas, quod maximum remedium habet, assiduitate amittit auctoritatem.-Seneca de Clementia, L. i. c. 22. ed. Lips. p. 204.
And, De Ira, i. 6. he inculcates the same doctrine, so ably advocated by the late distinguished jurist and civilian, the Hon. Edward Livingston, that the laws should know no vengeance. Legum præses civitatisque rector damnatum cum dedecore et traductione vita exegit; non quia delectetur ullius poena (procul est enim a sapiente tam inbumana feritas), sed ut documentum omnium sint, et qui vivi noluerunt prodesse, morte certe eorum respublica utetur.
On the other hand it is equally clear that capital punishments have been so generally abused and improperly multiplied in most countries, as to be liable, in many instances, to just objection. In England for example, in the days of Blackstone, one hundred and sixty different species of crimes were punishable by death. In the reign of Henry VIII, 72,000 persons were punished by death, amounting to about 2000 per annum !! How entirely public sentiment has mitigated the rigor of penal execution in that country, is proved by the fact, that out of 23,700 persons who were convicted of crimes of various grade, made capital by the laws of England, from the year 1813 to 1833, not more than 933 were actually executed: presenting the remarkable spectacle of about 25 convicts reprieved from the gallows, for every one actually executed! In the greater part of the United States only half a dozen crimes are punished with death, namely, murder, treason, arson, burglary, robbery, and rape; in New Hampshire and Vermont murder and treason are the only capital crimes, and in the State of Pennsylvania nothing but murder in the first degree can be punished with death. Even here we would add some further cautions, which would diminish the frequency of capital infliction. a) In all cases, where the evidence on which an individual has been convicted of deliberate murder is only circumstantial or based on the testimony of interested or suspicious witnesses; imprisonment for life should be the punishment, unless, (as is the practice in some of the Germanic States), the criminal himself confesses his guilt. b) The legal technicalities in the forms of indictment and prosecution, should be so changed, that no criminal could through the negligence or ignorance of the prosecutor entirely escape punishment, if not convicted of murder in the first degree, and thus the jury be tempted to find the prisoner capitally guilty, whilst a single doubt of malice aforethought remained. In every such case of possible doubt, as to the certainty of deliberate design, or the degree of malice, imprisonment for life and not capital punishment should be inflicted, unless the prisoner voluntarily confesses his guilt. c) No one should be convicted capitally, whose age and mental development are not such as certainly to imply his consciousness of the supreme criminality of a wanton destruction of human life. d) And a new trial should be granted to the convict, if he can make it appear, that new evidence in his favor has come to light. This also is the practice in some portions