Page vindictive-as awarded for injury done to society—as a retribution ;-proportion be- tween punishments and crimes;-analogi- cal, exemplary, and preventive punishments noticed;-defence the proper object of pu- nishment; the infliction of death to be justi- fied only on extreme occasions ;-corporeal Of the analogy between human and di- vine law;-the Mosaic and Patriarchal dispensations;-of judicial discretion, and Of imprisonment; of transportation; the causes of failure in punishments ;—whe- ther to be attributed to the government, the THE PHILOSOPHY OF CRIMINAL JURISPRUDENCE. CHAPTER I. Of the state of the public feeling relating to the subject;-the prospects the discussion presents, and the difficulties to be apprehended. IT is an opinion which has had the sanction of ages, that every nation has necessarily its period of improvement and decline; and, in looking back on human affairs, it must be confessed, that the retrospect is unfavourable to another conclusion, and almost excludes the hope of witnessing any material renovation in the institutions of mankind. It would seem as if national glory was permitted to arrive at a splendid crisis only to kindle its funeral pile; and that truth has to commence her laborious ascent afresh, after having transiently exhibited herself to a few passing generations. B AIMBOLIAD But it is happy for mankind that they are more ready to be elated by hope than dejected by fear; or, perhaps, the alarming encrease of penal convictions; the viciousness of the lower orders; and more especially, the growing depravity of our youth, would excite such a despondency in this island, as might hasten the catastrophe, which we are hoping to avoid. As nothing is so sure a protection against shipwreck as a knowledge of the seas we are traversing, so nothing will contribute more to save us from the danger of any political evil, than a thorough investigation of every subject bearing upon, it. If it be true that old legislatures are naturally opposed to innovation, it is equally true that the people, at a certain stage of information, are precipitately fond of it. It is therefore of the utmost importance that the public should be put in possession of every new view, in which a subject is capable of being placed: and thus, by being made acquainted with the difficulties and the encouragements, they may give themselves up, neither to hopelessness on one side, nor to rash encounters on the other. The national voice has been lately raised against the construction and administration of the penal law, and the subject is thus forced upon the most sluggish attention. This has not arisen from the encreased severity of the executive power, the clemency of which has notoriously been more prevalent than in former days, but from the encrease of crime, after all the exertions which have been made to prevent it. Besides this, we live at that turn of improvement, where mankind are apt to think lightly of old doctrines for no better reason than because they have not accomplished all that was expected; and thinking, as a traveller does, that the only way to recover the lost path is to tread back his steps, they are desirous of beginning their career afresh with new institutions. Be it observed, however, that moral and political truth will not admit of such a retrogression. We cannot here retrace our steps; for we must take men as we find them, made up: as they are of habits and customs, and endeavour to accommodate to their new opinions. the institutions already established. We must engraft upon the old stock, and not attempt to plant a new one. Such a state of public opinion, though it brings many inconveniences which are to be lamented, is, I trust, a presage of improve ment; and an evidence that moral science is only following upon the heels of physical science, and will, under wise management be conducted to the same solid and satisfactory ends. The one throws light upon the other; and the more they are studied together, the more they seem consecutive and dependent. Thus every new principle that is discovered in Art or Science becomes the centre of a concentric series; or rather, as I have seen the relation of subjects in Natural History illustrated, our items of knowledge are held together like the meshes of a net, in no very regular order, but still connected on all sides, and capable of being extended to an indefinite length and breadth. To pursue these varying series by inductive reasoning, and to resolve them into general truths, is the legitimate end of moral and political speculation; and in no one thing does the ascendency of the moderns over their ancestors appear more conspicuous. From these considerations, I am disposed to look upon the interest that is taken at present in the question of Crimes and Punishments, as likely to result in beneficial consequences; and that it is not forced upon our consideration more by the state of our prisons, |