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hundreds to be honest and industrious, and that is no small use in a man whether living or dead,
-fungi vice cotis, acutum
Reddere quæ ferrum valet, exsors ipsa secandi.' Before laws are made or unmade on the principle of being useful to the state, we ought to have good definitions of être utile, servir, &c. and know whether those phrases always mean work done with a spade or a mallet. For anxious as we are to have it tried whether more humanity may not be infused into the English laws, we shall never think of enlarging upon the funds that may be raised by convict labour. Life is too sacred a thing to be either taken or spared on such considerations.
The Empress of all the Russias acquired the reputation of great tenderness for human life by a code of laws which contained no one capital punishment. Her predecessor Elizabeth had ordered justice to be administered in the same way. Elizabeth promised that no one should be put to death during her reign, and Voltaire says she kept her word. *But unfortunately for the fame of her clemency, and the historian's exactness, there were many examples to the contrary; not to mention torture, and other cruel punishments worse than death, during her time. The edicts of a despotic government are one thing, its practice another; and Sir William Blackstone seems to have put too much faith in them when he described, as he has done with some encomiums, the total abolition of legal bloodshed under this princess, who yet was the most benevolent and forbearing of the sovereigns of Russia.
The constitutions of Catherine profess a deliberate abhorrence of taking away human life, which is ill supported by the events of her reign. She has condescended to transcribe into her Instructions for the Compilement of the Russian Code many of the sentiments of Beccaria, retaining his very words in her imperial homilies. We may remark in passing that her extracts from his essay are most judiciously chosen; for while she adopts his arguments against the use of death as a punishment, upon the account of its being less efficacious on the public feeling, than a more prolonged state of suffering ; she omits every thing he has said respecting the original compact, and limitations of the sovereign right, arising from it, as doctrines not equally good to be taught in all countries.+
* See Coxe's account of Russia. Penal Code.
+ The imitation of a transcriber will be seen by reading cap. 16, dei Delitti e delle Pene; aud sect. 4. art. 10. in the Instructions pour dresser la Code de Russie.?We have some doubt as to the dates, but believe that beccaria's work was published before that of the Empress.
It would be a happy thing to be able to borrow a precedent of lenity from the example of a despotic government; and as Russia stands indebted to the older states of Europe for her arts and manners, it would be a splendid compensation if she could give them a model of jurisprudence in return. But the phænomenon is too wonderful to be easily believed. An empire which only the other day was still in the woods, can hardly have become perfect so soon in the most difficult of all the sciences. And what is the report
of travellers as to the tried value of the code of Catherine ? It is going daily into disuse. Or who will vouch for the fact of its having been truly administered even in her own life-time? Does her personal character permit us to suppose it? Is arbitrary power so faithful to the popular principles which it is known to assert in its official decrees and manifestos ? Or does it not hold a privilege of dispensing with the laws in favour of severity when occasion requires ? But be it so that this merciful code was actually administered, which it might very well be, where there was nothing more to be alleged against the criminal than his crime: we should be glad to see a report from the fifty provinces of the empire, whether men were at ease in their rights and property, safe in their homes, and slept securely under the superintendence of this indulgent system. Before we send a decemvirate of English lawyers to transcribe the imperial code at Moscow, it would be right to ascertain whether it has been found sufficient in the country which gave it birth. If to these suspicions, we add, that, although in Russia, death is nominally not the punishment, it often ensues from the mode in which other punishments are inflicted, we shall have little cause to envy them their plan of criminal law. Will humanity find her heart much relieved by turning fromí an execution to the sanguinary inflictions of the knoot, or the slow deaths that make up the eternal living obituary of the Siberian mines ? Nor should we forget that one of the most suspicious benefits of despotic power, is a pretence to make wrongs between man and man of easy atonement. This plausible lenity may be indifference to the welfare of those who ought to be more anxiously defended; or it may be a compromise of policy to be remiss in avenging the mutual wrongs of the subject, and severe in its own cause; for however cheap penal justice may have been in Russia for private injury, in no country have offences against the state or the sovereign been visited with more signal and unceremonious rigour. Upon the whole we expect to receive little assistance in the amendment of English law from a study of the Muscovian pandects.
Whatever the law chooses to make a punishment, becomes so in fact, is the maxim* of Montesquieu, and copied also into the In
stractions of the Empress. Montesquieu however was far from supposing that laws could be kept without the last and fatal sanction to enforce them; and he has exposed the weakness of two or three of the Greek Emperors who made general vows and resolutions of dispensing with it.
Shame and civil disabilities are among the best resources of a penal codebut we must take care--for the law cannot absolutely create feelings, nor make a punishment of that which men themselves do not concur in making such. Those who are to be restrained by the law, must be first considered; for such as they are, such must the restraints be. If they are men who laugh at the conventional sway of opinion, and set civil life at defiance, there is no resource for the law, but in those feelings which men cannot renounce at will, the dread of pain, labour, and death. When the tigers are loose, it will be in vain to bring silken cords to bind them. Ineffectual coercion of crimes is in one sense even worse than impunity, for the offender is punished, and yet the peaceful citizen not protected, which is the end of punishment. The magistrate himself too becomes a party to the aggression, when he makes crimes a matter of eligible calculation to those who are ready to commit them.
If, then, a revisal of our criminal law should take place, with the view of making it more temperate in its enactment, and more correct and certain in the application, we hope the interests of hu* manity will be placed upon the same foundation with the public good. The theories which we have seen, that promised to gratify our mind with some prospect of an iinproved jurisprudence, have only amused us with a perverse substitution of evil; and given us such kind of satisfaction as the exchange of too much fierceness in the law into too much boldness in crimes was likely to inspire. If they divested the magistrate of some of his painful and invidious duties, to make him appear more humane, they did not make him appear more respectable when, by the abdication of his trust, he was to be a tender-hearted spectator of multiplied disorders and miseries. In listening to their illusive panegyrics, upon legal and judicial lenity, we have found the Utopian dream cruelly disturbed by the cries of its own victims.
To make any real improvement we should think a statesman ought to set aside all theory, and begin by assuming nothing; that he should call before him an account of each law as it is now adminstered ; the prevalence of the offence; the habits and condition of those who may be guilty of it, or affected by it; and after consulting the voice of the courts, as expressed in their practice, as well as the judgment of individuals who sit in them, should proceed to solicit in behalf of mercy such concessions as the actual state of the counVOL. VII. NO. XIII.
try will admit of, and the sense of it will support. He must work his way
towards improvement; not jump at it. Such humanity will be safe, because it is progressive; before he quits the footmg he now holds, he will see the ground on which he is to plant his next step. The present vigour and force of the laws will experience no interruption, but continue to circulate through the new channels laid for them.
In recommending a method less airy and ostentatious than will content the spirit of those who wish to get a name by making things better on a large scale; if there be any good sense in our advice, it must be taken as nearly an account of what Sir S. Romilly has done. His plan is the model we have been describing. He began with a single law; a very old one; so old indeed that it was time for it to be taken down, having stood in some shape as a capital law for a thousand years. We have already described what it was. This piece of obsolete and injudicious severity being reformed, he proceeded next to three statutes, nearly connected with each other in their subject; and with great temper of inquiry, and after a diligent examination of the mode in which they had been executed, submitted them to repeal. We do not think he could have selected three more meritorious candidates for amendment. But that is not the point at present; what we wish to suggest is, that whether his notions be right or wrong as to what he wished to effect, he has taken the only course of proceeding we ever wish to see followed; a patient examination of his subject, and a single and temperate effort at once.
We might embellish our pages, if we were so inclined, with many forcible quotations from Lord Bacon, (who had planned a revisal of our laws, and has drawn an idea of what a good law ought to be,) from Stiernhook, the Swedish Blackstone ; from Sir W. Blackstone himself; and from the recent work of Mr. Bentham on the Theory of Punishments and Rewards; to illustrate the superior value of certainty and precision in laws above severity, and expose the defects of those legislators who have spared their wisdom, and trusted all to their vigour. But we shall forbear to collect maxims and sentences; perhaps an opportunity will occur, when we may be able to treat those points more fully and usefully than in a series of quotations.
To return to the three acts we have been speaking of; our readers will observe that they are of a date comparatively recent ; having been passed in the reigns of William The Third, Queen Anne, and George the Second. The first two are levelled at offences which were capital before, but entitled to the benefit of clergy. The effect of the acts, therefore, was only to take away. that plea of general grace. The time of their passing seems to mark the increase of our wealth and commerce, which would contribute to render the crimes in question more frequent, as when the bees have filled their hive, the wasps will be there. In different stages of society there will be a succession of new crimes to exercise the vigilance of the law; and the general habits and state of the times cannot vary faster than the vices produced or fostered by them. In a ruder age the violent crimes will prevail; in a more civilized
the meaner. We rather believe, however, that in a rude age there is much violence and baseness joined together; as none are more addicted to theft and sordid cunning than savages ; but the atrocities throw the humbler vices into the shade, and cause them to be less felt in their own age, and less known in another. Commerce itself, however, is the fruitful mother of the crimes of theft in all their varieties ; not more from the habits it bestows than the opportunity it affords to that offence. It pours in wealth in a shape the most convenient for plunder. The rural opulence of our forefathers was not completely safe; still, their oaken tables and their wheat ricks could not be carried off without some trouble, and men were honest because property was immovable. But when commerce has collected together the enjoyments of life, and given to more men the taste than the means of them, dishonesty is whetted by all it sees, and by the ease of invading it. We need not wonder at the activity of theft when we look at the accumulated riches of a metropolis, crowded with shops and houses overflowing with loosely-guarded plenty ; shops where trade thrives so well that the owner cannot attend to his customers and the thief at the same time; and houses where the display of wealth is more a fashion than the economy of it. In Newgate biography, perhaps, examples might be found of a man's setting out perfectly honest at the one end of Cheapside and becoming fit for a prison before he reached the other. The circulating force which keeps property constantly afloat, and ready to fly at a touch, places it equally in the way of traffic and of pillage. To be ready to be sold, it must be ready to be stolen. To protect all this plenty, and especially in its less divisions, the law is called upon to exert its power. The small proprietor, indeed, could hardly be called the owner of what he enjoys but for the strong hand of the law. His inventories and title deeds would be nothing without the statute-book.
That there was too much zeal, however, in the legislature when it made a capital offence of every small invasion of this property, is allowed by the universal disinclination to treat it as such at the present day. The spontaneous judgment and feeling of the courts have corrected the law. Our attempt has been to .shew, that it would be expedient for the law now to fix the judgment and feeling of the courts.