The offender, who is hoping to gain by the smuggling of tobacco, is treated like another, who robs an innocent person on the high way. Crimes and punishments thus become the object of "moral arithmetic," for should the profit of the delinquent greatly exceed the loss of the injured person, the penalty to be awarded will be great; or, as Mr. Bentham would put it, if the pleasures of the one should greatly overbalance the pains of the other, the punishment would be in like proportion. By a parity of reasoning, if the pleasures of the aggressor and the pains of the aggrieved should be equal, the account between them would be balanced; and if it should be found, as no doubt it sometimes is, that the pleasure and profit anticipated by a criminal are far less than the pain inflicted by him, there would absolutely oe a balance in his favour! But pleasures and pains are not fit objects of arithmetical calculation, and if reduced to so gross a treatment, the pains are in effect very similar to revengeful penalties, since such a mode takes for its guide so vague a criterion, as in effect to be no guide at all. The plan is also highly objectionable, inasmuch as it has reference to other conduct than that of the offender; and therefore his suffering must be greater than he is entitled to. Thus it may rise to cruelty and torment, and there is no extent to which it may not be carried. If the means employed to repress all descriptions of injury be the same, it will be of little avail whether we propose as our end the prevention of crimes, or the gratification of an irregular passion. The use of the same means for two such very different ends, manifests the fluctuating and indistinct notions entertained on the subject. I apprehend, the proportioning of punishments to crimes is by no means a modern attempt, but on the contrary, it is a revival of the earliest practice of all criminal law, with a slight variation as to the end proposed. We have been gradually departing from this uncertain system, and have been fixing the basis on other principles more consistent with our ideas of justice. Thus corporeal punishments, which were thought to be most capable of being distributed in the proportion which was due to the crime, have been nearly discontinued throughout the kingdom. We never hear now of the mutilation of the body, by cutting off the hands or ears, slitting the nostrils, branding the cheeks or hands ; and any judicial authority, that should award such sentences, would render itself obnoxious. The whipping of women has been abolished by law; and it is but seldom inflicted even on men, as the decayed state of every parish whipping-post and stocks gratuitously testifies. The truth is, that the progress of all penal laws is from cruel punishments to the more merciful: from artificial and complex rules to others more simple; and, most certainly, not the contrary. Corporeal inflictions, as being more distinctly retributive than most others, have only yielded to the improved state of moral feeling which has prevailed; and this fact illustrates a remark, which I believe to be well founded, that the feelings of the people conduct them very frequently to a right decision long before it is sanctioned by their reason. All criminal jurisprudence, in its earlier stages, is built upon fancied analogies between crimes and punishments; and the farther back we search for examples the more they will be discovered to abound. "Punishment (according to a striking personification in the Hindoo Code) is the magis T trate; punishment is the inspirer of terror; punishment is the nourisher of the subjects; punishment is the defender from calamity; punishment is the guardian of those that sleep; punishment, with a black aspect and red eye, terrifies the guilty." The lex talionis is the most striking analogy that can be pointed out; and this was a leading feature of the Mosaic law, and "an eye for an eye, and a tooth for a tooth" was a proverbial expression. It is also the leading principle of Mahommedan penal law. "You will find," says the Koran, "in this law, and in the fear which it inspires, the best security of your life." One of the laws of the twelve tables was, Si membrum rupsit, ni cum eo pacit, talio esto. By the ancient law of England, he that maimed any man, whereby he lost any part of his body, the delinquent should lose the like part, as he that took away another man's life should lose his own.† By the 37 Edward III. c. 18. such as preferred any suggestion to the King's great Council should put in sureties of taliation; that is, incur the same pains that the other should have had, in case the suggestion were found untrue.‡ * Robertson's Indía, p. 218. 3. Coke's Inst. 118.- -+4. Black. stone's Com. 14. The gradual disuse of analogical punishments among modern nations, and their almost total abandonment among ourselves, proves their unsuitableness; and indeed, if carried to the extent approved of by some writers, they are in many instances so coarse, and in others so ludicrous, that their effects instead of exciting indignation in the beholders, would frequently raise their pity or their laughter. "Pour établir de l'analogie entre la peine et le délit, il faut qu'il y ait dans le délit quelque circonstance frappante qu'on puisse transférer dans la peine. Cette circonstance frappante ou charactéristique sera l'instrument qui sert au crime; l'organe qui le consomme; la partie du corps qui a été le sujet du délit; le moyen employé par le délinquant pour n'être pas reconnu, etc."* Thus, the incendiary, who had sacrificed life as well as property, he would have punished by burning; corporeal injuries by the infliction of similar ones; the poisoner by * Theorie des Peines et des Recompenses, Tom. 1. p. 50. |