Billeder på siden

sent evil as it arose. It was therefore impossible that those combinations could then be made which were necessary to accomplish this in a proper manner. The various infringements which in process of time have been made upon the order of society, or the crimes committed against it, were not foreseen in the first establishment of social compacts, and therefore not guarded against. There evils have arisen unforeseen, and one after another; it is no wonder then that the first people who were obliged to institute penal laws, Thould have committed such mistakes in determining the proportions between the mischief and the interests of mankind.

But their mistakes, however considerable, were certainly not so much to be apprehended, as a fatal inattention to the interests of society. It therefore became necessary for the prefervation of society once formed, that the punishment of crimes should be instituted; otherwise the paffions of men thus assembled, being excited by a multitude of different objects, confusion and disorder would have prevailed on all fides, and the new establishment would foon have been annihilated in its infancy.

The second chapter treats of the severity of penal laws in the origin of society.

The author traces the penal laws instituted in the origin of most nations; from which it appears that they were extremely severe. Adultery, theft, and acts of violence, were the first erimes that were punished. Death iflicted with more or less cruelty, and mutilation were in general the only punishments. The penal laws of Japan were extremely cruel ; Montesquieu quotes one of them which punishes a man with death for risking money at play.

The republic of Tlafcala, the first form of government which the Spaniards met with in America, seem to bave inftituted their penal laws in a manner very different from those of other nations. Falfhood, want of respect from a son to his father, and sodomy, were punished with death ; while banishment only was awarded against theft, adultery, and drunkenness.

The reason of this severity in the first penal laws, according to our author, is that they were inade by persons who had bo other idea than that of securing to themselves the quiet enjoyment of tleir own privileges; the severity of the penalty therefore could not affect them; as they could not imagine that they should ever subject themselves to it; and, it appeared the most likely way of restraining the incroachments of others.

The third chapter treats of the degeneracy of the penal laws.

[ocr errors][ocr errors]

This extreme severity of the first penal laws could not be of long duration; accordingly, we find that the relaxation of them which foon fucceeded, was carried to the other extreme. The punishment of the lex talionis, as well as other cápital punishments was changed into pecuniary penalties and con. fiications to government: a custom established and maintained with intinite art in Greece ; a custoin which implied an absolute relaxation with respect to the punishment of crimes; by securing the person of the offender, upon the surrender of lis pioperty

The licentiousness introduced by this custom made it necesary to have recourse again to feverity; which was again carried to excess; the legislature thus proceeding from one extremity to another, which must ever be the case, till a juít medium be fettled between too much cruelty and too great remissness.

In the fourth chapter on confiscation, the author ftates very properly the ill effects of the present received modes of confifcation and then points out in what manner, and in what caies this penalty may be inflicted.

This confifcation must either be for the whole, or for part of the offer Aer's property.

After liaving observed that confiscation of the whole property should not be used except in cafes of great enornity, which would render it improper to lét such a criminal loose upon society i and which consequently imply his perpetuaf imprisonment; the writer proceeds thus. The offender is the person on wliom the confiscation is levied; and not his children; because he is to be punislied and not they; for as they are not in tlie least guilty, their condition cannot be changed, without palpable injustice.

« Confifcation therefore fhould only extend to the income arising from the property of tlie condemned person, during his life.

But in order that the condition of the children should not be altered, a certain fum must be referved from this income for their use, so as to supply the necessary expences of their education and maintenance, according to the situation of their parents.

* Total confiscation should therefore be the same thing as a royal trust, and the sentence of confiscation Thould anpoint guardians to the children, if they be minors, and should allot pensions to those who are of age.

· Confiscation of part of a man's property, may be a part of his inheritance, which must be divided among the heirs after the death of the offender.'.

In the fifth chapter on imprisonment, the-author suggests that there should be two kinds of prisons; one merely for


[ocr errors]

the detention of the accused person before trial; the other for the punishment of certain crimes. The former should be commodious habitations, very well secured, but of such a nature as almost to make the confined person forget the loss of his liherty, as we are told the prisons in China are. The latter should have different degrees of inconveniences or horror, proportioned to the nature of the crime; so as in all instances to make a material diftinction between the prison deftined for mere detention, and that for punishment.

The fixth chapter treats of exile'; the seventh of con. demnation to public labours, which the writer thinks might be inultiplied, by applying it to an infinite number of other labours ; the eighth of transportation, which he approves of when adjudged by a legal fentence; the ninth of admonition and cenfure ; and the tenth of infamy, a fpecies of punishment which the writer wishes to be more rigouroully and more frequently adopted.

The eleventh chapter fpeaks of the punishment of death; which the author agreeing with Beccaria, totally rejects, as directly contrary to the maxims by which focial' inftitutions ought to be guided. The antiquity of this punishment by no means establishes the justice of it ; and as there are some exceptions to its universálity, these are an invincible argumeni against the necessity of it. The impropriety of it is next to be considered, and this the author deduces from confidering man in an unconnected state as prone to good, and that his crimes are the result of connections and association. The laws of government being therefore institutions of society, cannot properly take from a man that which they cannot beftow. The public security is the only end which the laws ought to have in view, by example and by punishment and even fuppofing a man to be irretrievably wicked, a circumstance scarce possible for mortals to ascertain, still the public safety does not require him to be put to death.

This is a very slight sketch of the author's reasoning upon the subject ; which deserves to be read with attention. The last argument against inflicting the pain of death, is deduced from the necessary imperfection of proofs in ascertaining the guilt, and the offender. Dreadful indeed it is to think of condemning an innocent man to death ; and yet there are inftances of this having happened even in the cautious modes of proceeding adopted in our courts of judicature in England.

The twelfth chapter speaks of the punishments that might be fubftituted for that of death.

The author shews the necessity of adding corporal punishment to the privation of property in cases of great criminality, Eng. Rey. vol. V.Mar. 1785.



and when the offender is supposed to be irretrievably wicked. Perpetual imprisonment occurs as the method to prevent the future attempts of the wicked man to difturb fociety. But this appears to be a deficient punishment. It is a secret one; and therefore besides that it is not an example of terror to others, it becomes an object of miftruft to the citizens in general, who are readily apt to fappose that many unknown acts of injustice may be executed in a dark inclosure.

The writer proceeds thus, . To keep the wicked in fafe custody is therefore necessary, but this alone is insufficient. The cafe is altered, if to this imprisonment we add, con. demnation to public labours. This kind of penalty hath none but equitable and falutary views, and fulfills entirely the intention which the sovereign proposes in punishing the guilty. It is as severe as it is necessary to be for the sake of example; it is always prefented publickly to the citizens; whom it penetrates with the useful idea, that government is entirely employed in making public utility result from private and ordinary events. By this punishment, the safety of society is secured for the present; while the wicked man who readily accommodates himself to the idea of dying a little fooner, upon condition of living more happily than he could have done by prolonging his life; does not so casily reconcile hiinself to the idea of becoming ftill more wretched, without hope of relief. This punishment is therefore more effe&tual than death itself, in producing public safety and tranquillity in future ; it has not, as the pain of death, the terrible inconvenience of turning the mind towards cruelty, and of habituating to the effufion of human blood, &c.

In a word, the penalty of condemnation to public labours, makes it eafy to repair the injury done to an innocent person falsely condemned. The reparation may also be as notorious as the punishment, which is just and neceffary, fince the mistake was a public one.

The rest of the work is chiefly employed in considering the different relations of the penal laws to one another, and in giving sketches for constructing tables of these laws.

In the construction of these tables the author has been directed by the division made in the beginning of the work, of crimes into claffes, genera, and species. At the head of each table, he places the fundamental punishment which he thinks appropriated to each clafs of crimes, and in the fubdivisions of this class, exliibiting the different degrees of enormity, he modifies this fundamental punishment in various ways, suitable to these different degrees, sometimes combining it with other fundamental punishments, at other times relaxing it by various inodes of alleviation, 2


The fundamental punishments are confined chiefly to eigbt, with a few modifications. These are perpetual banishment from the state.--Imprisonment--Infamy-Condcmnation to public labours, or perpetual feclufion from fociety-Exile -Transportation-Confifcation and censure.

This code of penal laws therefore excludes, and perhaps with reason, every idea of inflicting the pain of death. With respect to the other arrangements, it is difficult to pronounce upon a fubject fo intricate, and which may be viewed in such different lights. The author has taken a great deal of pains, and entered deeply into it; but it is scarce possible for one man to foretee all the objections that may be raised against different parts of a system necetfa: ily' fo complicated, not in the mode of treating it, but in its nature. laws of all countries certainly require reformation, and those of some countries call still more loudly for it. To awakeni and excite the minds of able men to attend feriously to this reformation, is of itself a matter of great public utility. But our author has certainly done more than this.

The penal



Art. 13. Obfervations on the Tea and Window Aft, and on the Tea Trade. By Richard Twining, 8vo. Is. 6d. Cadell 1784. T WHERE is one question, upon which, as it will probably occur to

most of our readers, we will beg leave to animadvert for a moment. What was the great and momentous object, which drew Mr. Twining from behind his counter, and taught a tea-dealer to become -an author ? The purpose of serving a political party he totally dilclaims. His pamphlet is not the production of indolence and leisure. “To the horæ fubfecivæ of the day,” as he pedantically ex

long been a stranger.". The plain inference is, that, though the profeffed design of bis publication be, to point out the methods which are most likely to correct the present failure of the tea act, to remove the objections that are inade to it, and to render is productive of the good purpoles for which it was framed :" yet its covert object is to vindicate himielf and his brethren from the fupposed accusations that have been brought against them. For ourselves. we have no suspicion of the tea-dealers more than of any other body of men, and we believe Mr. Twining to be personally re{pectable. But we cannot avoid remarking, that we perceived no thing formidable in the vague and idle rumours, that were propagated at their expence ; and that we always imagined it to be one characteristic of conscious integrity, to despise the discontents of the unprincipled, and the cavils of the uninforined. P 2


« ForrigeFortsæt »