says he, are to be estimated according to the mischiefs which they produce in civil society. h

Mr. Eden, in one part of his book on the principles of penal law, tells us, agreeably to the same sentiments, that crimes are of temporal creation, and to be estimated in proportion to their pernicious effects on society: in another part, he says, that, in some cases, it is necessary to punish the offence without any research into its motive; and that, in every case, it is impracticable for lawgivers to assume the divine attribute of animadverting upon the fact, only according to the internal malice of the intention: in a third place, however, he expresses himself in the following manner: "It is true, that crimes are to be estimated, in some degree, by the actual mischief done to society; because the internal malignity of mankind is not within the cognizance of human tribunals. But if this position were received in its fullest latitude, it would prove too much; it would prove that every act of homicide is equally criminal; and that the intention is, in no case, to be considered:" in a fourth place, he considers its flagitiousness as the standard, by which a crime should be measured; and informs us, that, by its flagitiousness, he means its abstract nature and turpitude, in proportion to which, the criminal should be considered as more or less dangerous to society:' in a fifth place, he intimates the same sentiment, that "the malignity of the fact is the true measure of the crime." "

Is it not shocking to reason, says Mr. Dagge, and destructive of virtue, to contend, that the ill consequence

of an act is more to be considered than its immorality? To disregard a crime, however heinous, because it may be supposed not to have a bad effect on society; and to punish slight offences severely, because they tend more immediately to disturb the publick peace, is to sacrifice moral equity to political expediency. But, in fact, there is no real necessity for making such a sacrifice. If we would effectually provide for the lasting peace of society, we should first regard private offences, which are the sources of publick crimes. The subtle distinctions, which casuists make between moral and political delinquencies, are offensive to common sense.

n

Concerning the standard by which punishments should be measured in municipal law, there has been, as might be expected, as much diversity of sentiment, as concerning the standard for the measure of crimes.

Publick utility, says Mr. Eden, is the measure of human punishments; and that utility is proportioned to the efficacy of the example.

Liberty, says Montesquieu," is in its highest perfection, when criminal laws derive each punishment from the particular nature of the crime. Then the punishment does not flow from the capriciousness of the legislator, but from the very nature of the thing; and man uses no violence to man.

Among crimes of different natures, says Sir William Blackstone, those should be most severely punished, which are most destructive to the publick safety and

happiness: and, among crimes of an equal malignity, those, which a man has the most frequent and easy opportunities of committing, which cannot be so easily guarded against as others; and which, therefore, the offender has the greatest inducement to commit.

૧

Much to the same purpose are the expressions of Mr. Paley-the punishment should be in a proportion compounded of the mischief of the crime, and the ease with which it is executed. "

S

r

The end of human punishment, says Mr. Paley, in another place, should regulate the measure of its severity. To the propriety of this rule every one will subscribe; but it throws us back upon another, concerning which there is an equal variety and opposition of sentiment.

Criminals, says Plato in his book concerning laws, are punished, not because they have offended, for what is done can never be undone, but that they may not offend. t

The very learned Mr. Selden objects to this doctrine, and says, that the antecedent crime is the essence of punishment.

u

The amendment of the criminal is assigned by some as the end of punishment. To put it out of his power to do future mischief, is the end proposed by others.

q 4. Bl. Com. 16.
1 1. Dag. 203. Eden. 6.

r 2. Paley. 290.

s Id. 287. 1. Dag. 203.

To deter from the imitation of his example, is that proposed by a third class of writers. Reparation to the injured, is an end recommended by a fourth class.

Almost all agree, that between crimes and punishments there ought to be a proportion: but how can this proportion be fixed among those, who are so much at variance with regard to the measure of the objects, between which it confessedly ought to subsist.

If there is so much diversity and contrariety of opinion respecting the principles, how much greater diversity and contrariety of conduct may we expect to find with regard to the execution, of the criminal law. Nay, how often shall we find those rules violated in its practice, the propriety of which is agreed in its theory.

The theory of criminal law has not, till lately, been a subject of much attention or investigation. The Marquis of Beccaria led the way. His performance derives much importance from the sentiments and principles, which it contains: it derives, perhaps, more from those, which its appearance has excited in others. It induced several of the most celebrated literati in Europe to think upon the subject. The science, however, is, as yet, but in a weak and infantine state. To convince you that it is so, I need only refer you to the unsatisfactory, nay, the contradictory sentiments, of which I have given you an account, with regard to the two great heads of crimes and punishments. That account has been extracted from the most celebrated writers on the subject

-from writers, indeed, who, on any subject, would deserve celebrity.

To give you a history of the practice of criminal law would be a task, not difficult, because the matérials are very copious; but it would be very disgusting both to you and to me. I draw the character of this practice from one, who appears to have a head and a heart well qualified to feel and to judge upon the subject-I mean the Author of the principles of penal law. "The perusal of the first volume of the English State Trials," says he," is a most disgustful drudgery." "The proceedings of our criminal courts at this era"-meaning that which preceded the revolution-" are so disgraceful, not only to the nation, but to human nature, that, as they cannot be disbelieved, I wish them to be buried in oblivion. From oblivion, it is neither my duty nor inclination to rescue them."-No; nor to rescue from oblivion the proceedings of other ages and of other countries, equally disgraceful and disgustful. I recite only a single instance.

Mr. Pope, in his picturesque and interesting retrospect of the barbarous reigns of the Conqueror and his son, asks, alluding to the laws of the forests

What wonder then, if beast or subject slain
Were equal crimes in a despotick reign?
Both, doom'd alike, for sportive tyrants bled,

But while the subject starv'd, the beast was fed. w

Many, I dare say, have considered this as a fine fanciful description of the Poet. It has, however, been exceeded

▾ Eden. 199.

w Windsor Forest.