APPENDIX.-No. X. On the PRINCIPLES of CRIMINAL JURISPRUDENCE, as unfolded in Lord KAMES'S Essay on the History of the Criminal Law: with an Examination of the Theory of MONTESQUIEU and BECCARIA, relative to Crimes and Punishments. [Intended as a Supplement to Lord KAMES'S Essay, and Illustration of its General Doctrines.] I. It is a matter of equal regret to the politician and to the mora list, that the science of Criminal Jurisprudence, on which the good government and peace of society most materially depend, should, in this enlightened period, remarkable for its advancement in many of the branches of political economy, as well as of the philosophy of morals, remain in a state of great imperfection. If this imperfection is denied, it may be made apparent, very shortly, from two separate considerations: First, The great discrepancy of opinions entertained by the ablest writers with regard to some of the most important doctrines of the science: Secondly, The barbarity and absurdity of many of the penal laws of the most enlightened nations. 1. Capital punishments have been reprobated by the Marquis de Beccaria, M. de Voltaire, and many other modern writers, as tyrannical, inhuman, and impolitic. On the other hand, the punishment of death applied to certain crimes, has been defended by lawyers, poli VOL. I. k ticians, ticians, and philosophers, on the score of justice, wisdom, and the most enlarged humanity. Some enlightened men have justified the extension of the punishment of certain crimes to the family and descendants of the criminal *; while others strongly reprobate that extension, as a remnant of the most barbarous policy. A modern respectable writer, arraigns the practice of penal imprisonment, as contrary alike to good morals, and to good policy. "Imprisonment," says Lord Auckland, " inflicted by law as a punishment, is not according to the principles of wise legislation. It "sinks useful subjects into burdens on the community, and has al ways a bad effect on their morals: Nor can it communicate the "benefit of example; being in its nature secluded from the eye of "the people." The same writer maintains, that the sole end of imprisonment ought to be, " to keep those who are accused of injuries to society, amenable to the decisions of justice t." This is agreeable to the Roman law: Carcer non ad puniendos, sed ad custodiendos homines adhiberi debet. The law of England, however, and indeed that of most countries, repudiates this doctrine, and acknowledges imprisonment among its punishments for a variety of smaller offences. By the law of Scotland, imprisonment is not only the punishment of many of the lesser crimes; but it is even, in one instance, a species of torture, and has been vindicated as such by able writers. "After a debtor is imprisoned," says Erskine, "he ought 66 not to be indulged with the benefit of the free air, either on his parole, or even under a guard: for every creditor has an interest "that his debtor be kept under close confinement, that, by the squalor carceris, he may be brought to the payment of his just "debt." * See Considerations on the Law of Forfeiture, by the Hon. PHIL, YORKÉ. 2. An 2. An equally convincing proof of the imperfection of this science, arises from the many inhuman as well as absurd penal laws, which disgrace the jurisprudence of the most civilized nations. By the statute 39th Eliz. c. 17. which stands at this day unrepealed, a soldier or mariner who shall be found wandering through the country without a pass from a Justice of the Peace, or who exceeds the time limited by his pass, is to be punished with death. By the statute 9th Geo. I. c. 22. the writing of an anonymous letter, demanding money, victuals, or any thing of value, is punishable with death. By statute 20th Geo. II. c. 46. it is declared felony, without benefit of clergy, for the friends of any person transported, to hold any intercourse with him, by letters, messages or otherwise. This may be justified from good policy in a time of rebellion; but this statute is a permanent law; and thus a capital punishment is decreed for what in many cases may be an act of piety, of duty, and of humanity. With what indignation do we read those statutes which enact the punishment of death for setting fire to a hay-cock, breaking down the head of a fish-pond, or cutting an apple-tree in an orchard! 9th Geo. I. c. 22.; 9th Geo. III. c. 29. The wretch who is impelled by misfortune, or by disease, to put a period to his own existence, is an object of the deepest commiseration. The misery of his mind was insupportable, which could overcome the strongest instinct of nature. Of the quality and measure of his offence, that Almighty Being, who weighs the thoughts of the heart, is the only judge. His own act has put him beyond the reach of human punishment: every infliction of the law, therefore, which is consequent upon this crime, can be directed only against the innocent survivors. "What punishment," says Blackstone, “can hu man laws inflict on one who has withdrawn himself from their "reach?" None, is the answer of reason and of humanity. But let us hear the response of the lawyer: "They can only act upon what "he has left behind him, his reputation and his fortune: On the former, by an ignominious burial in the highway, with a stake "driven through his body; on the latter, by a forfeiture of all his goods and chattels to the King: hoping that his care for either "his own reputation, or the welfare of his family, would be some "motive to restrain him from so desperate and wicked an act*.” This answer is a miserable sophism, and the doctrine it inculcates is revolting to humanity. It is allowed, that the offender himself is beyond the reach of human laws; no punishment can extend to him. On what, then, can the punishment of the law operate? On his reputation, and on his goods and chattels. But who suffers from this punishment? Is it the dead offender? No; it is the surviving family: the miserable widow; the orphan children. Theirs is that ignominy, which this wise law inflicts; and theirs is that accumulated misfortune, to lose not only the protecting hand which fed and supported them, but the fruits of all his labour, the sole provision for their future subsistence. Will a judicious foreigner, who has heard of the wisdom of the laws of England, believe that such doctrines as the following make a part of them at the present day? A man, shooting at a bird, happens to kill his neighbour. The guilt of this man will depend upon the nature of the bird, whether wild or tame, and the man's intention in shooting at it. If the bird chance to be wild, such as a heron, crow, kite, or any other fowl which is nullius in bonis, the of fence is excusable homicide: If a tame fowl, and shot at for amusement, the crime will be man-slaughter; because the offender was committing BLACKSTONE, Com. b. iv. c. 14. § 3. committing an unlawful trespass on the property of another: And, lastly, if the bird were private property, and the shooter intended to steal it, the crime will be murder, by reason of that felonious intent*. Can it be necessary to prove, that as it is the intention alone that determines the nature of a crime, he who, intending to steal a pigeon, kills a man through pure accident, can never be guilty of murder?—In the same spirit of sophistry, the law of England holds, that if a man, in endeavouring to shoot another, is killed himself, by the bursting of his gun in his hand, it is wilful and deliberate selfmurder †, and draws after it all the consequences of that crime. Breaking a house by night, by unbolting the door, picking the lock, or opening the casement, is, by the law of England, búrglary, and a capital crime. If the robber comes in at an open door or casement, the offence is of an inferior description. In the trial of a prisoner at Cambridge, it was doubted, whether a robber, who came down the chimney, was guilty of burglary, seeing the chimney is open. But as it appeared in evidence, that some of the bricks were loosened, and fell into the room, this, says Sir Matthew Hale, put it out of all question; and direction was given to find it burglary. Mr Locke puts the following singular case with respect to justifiable homicide: "A man with a sword in his hand, demands my purse on the highway, when perhaps I have not twelve pence in my pocket: this man I may lawfully kill. To another I deliver £. 100 only whilst I alight, which he refuses to restore me when "I am got up again; but draws his sword to defend the possession "of it by force, if I endeavour to retake it. The mischief which "this man does me is a hundred, or possibly a thousand times more "than the other perhaps intended me, (whom I killed before he real"ly * KEYL, 117. + BLACKSTONE, b. iv. c. 14. § 3. |