may be drawn from this supposed case; the question being, not as to the mode in which penal laws are to be executed, but as to the principle upon which they are to be founded.

But to return to Paley.

ment.

or whether with truth in any

'In what sense,' he proceeds to say, sense, justice may be said to demand the punishment of offenders, I do not now inquire; but I assert that this demand is not the motive or occasion of punishment. What would it be to the magistrate, that offences went altogether unpunished, if the impunity of the offenders were followed by no danger or prejudice to the commonwealth? The fear lest the escape of the criminal should encourage him, or others by his example, to repeat the same crime, or to commit different crimes, is the sole consideration which authorizes the infliction of punishment by human laws. Now that, whatever it be, which is the cause and end of the punishment, ought undoubtedly to regulate the measure of its severity. But this cause appears to be founded, not in the guilt of the offender, but in the necessity of preventing the repetition of the offence; and hence results the reason that crimes are not, by any government, punished in proportion to their guilt, nor in all cases ought to be so, but in proportion to the difficulty and necessity of preventing them. Thus, the stealing of goods privately out of a shop may not, in its moral quality, be more criminal than the stealing them out of a house; yet being equally necessary, and more difficult, to be prevented, the law in certain circumstances denounces against it a severer punishThe crime must be prevented by some means or other; and, consequently, whatever means appear necessary to this end, whether they be proportionable to the guilt of the criminal or not, are adopted rightly, because they are adopted upon the principle which alone justifies the infliction of punishment at all. From the same consideration it also follows, that punishment ought not to be employed, much less rendered severe, when the crime can be prevented by any other means. Punishment is an evil to which the magistrate resorts only from its being necessary to the prevention of a greater. This necessity does not exist when the end may be attained; that is, when the public may be defended from the effects of a crime by any other expedient. The sanguinary laws which have been made against the diminishing or counterfeiting the gold coin of the kingdom might be just until the method of detecting the fraud, by weighing the money, was introduced into general usage. Since that precaution was practised those laws have slept; and an execution for them, at this day, would be deemed an instance of unjustifiable severity. The same principle accounts for a circumstance which has often been censured as an absurdity in the penal laws of this and of most modern nations, namely, that breaches of trust are either not punished at all, or punished with less rigour than other frauds. Wherefore is it, some have asked, that a violation of confidence, which increases the guilt, should mitigate the penalty? This lenity or forbearance of the laws is founded on the most reasonable distinction. A due circumspection in the choice of the persons whom they trust; caution in limiting the extent of that trust, or the requiring of sufficient security for the faithful discharge of it, will commonly guard men from injuries of this description; and the law will not interpose its

sanctions to protect negligence and credulity, or to supply the place of domestic care and prudence. To be convinced that the law proceeds entirely upon this consideration, we have only to observe, that where the confidence is unavoidable-where no practicable vigilance could watch the offender, as in the case of theft committed by a servant in the shop or dwelling-house of his master, or upon property to which he must necessarily have access, the sentence of the law is not less severe, and its execution commonly more rigorous and certain, than if no trust at all had intervened.'

Now here it may be said What stronger proof can you require of the doctrine that prevention is the sole end of punishment than is furnished by this illustration? And if the principle holds good in this case, why not in all? We answer, that even granting the distinction here laid down, to be accurately accounted for on Paley's theory, it by no means follows that that theory is sufficient to account for all cases of punishment. But even this case, we think, may be explained upon a principle quite as satisfactory as that which Paley assigns. The principle we mean is the presumption of the defendant's innocence, before proof is afforded of his guilt. Now, in cases of breaches of confidence, it is almost impossible to obtain adequate proof of guilt, unless the alleged injury has been committed in the face of a certain security, either specified or implied in the nature of the trust reposed. Thus, a servant who steals plate from his master, is guilty of a breach of trust, which everybody knows, from the relation existing between the two parties, to be a downright act of theft; whereas, he who receives money from another without any sort of security being required of him for its repayment, or its application to particular purposes, cannot easily be proved to have committed any wrong against the lender, because the law very justly presumes, that he who parts with his property to another, without any kind of security, cannot reasonably expect to see it again.

The

In like manner we doubt very much, whether the necessity for punishment does not exist in many cases where the public may be defended from the effects of the crime by other means. wise man has told us that Men do not despise a thief, if he steal to satisfy his soul from hunger;' but, upon Paley's principle, how comes it that thousands are annually sent to jail, nay, petition to be sent there, for this very offence, when the means of preventing it are so close at hand, nay, when it is the bounden duty of the legislature to prevent it?

A similar objection will lie, and has often been urged, against inflicting capital punishment, even for murder, upon the principle which Paley advocates. Thucydides remarks, in the speech which he attributes to Diodotus, that all punishments have probably been progressive-that in consequence of milder punish

ments being found to be ineffectual, severer ones have been introduced, and then proceeds to urge, in behalf of the Mitylenians, the remission of the sentence denounced against them, on the ground, that extreme punishments, while they fail to prevent crime, tend to make criminals desperate, and thus it has of late years been argued―

What is the use of inflicting capital punishment at all? Many persons have been hanged for murder, yet murder is still committed; why then pursue a system of punishment which, being of so extreme a nature, can only be justified upon the supposition that it really does prevent the crime for which it is inflicted? Nay, so far from public executions preventing a repetition of the offence, it has been thought, by sagacious and experienced men, that they rather tend to promote it. Let us try some other mode of punishment; let us see whether imprisonment for life, accompanied with other rigorous measures, will not strike more terror into the minds of the public, and thus more effectually accomplish the end of its institution, than a mode of punishment which experience has proved to be in vain.'

We leave the disciples of Paley to answer these objections as well as they can. In the mean time, we do not envy them the philosophy which once attempted to justify hanging for forgery and sheep-stealing by the very same arguments which it now adduces against hanging for murder.

The fact seems to be this. Paley found a certain system of punishments in existence in his day, and instead of inquiring whether it was right or wrong, only thought it his business to account for the fact. To reconcile the sanguinary code then in vogue, with the principles of reason and common sense, he lowered those principles to the standard of expediency. Knowing how disproportionate to the crimes of sheep-stealing and forgery were the punishments assigned to them, he vainly attempted to justify these Draconic enactments by the astounding fiction, that those who were hanged for such offences, were not put to death because they deserved it, but solely in order that others might be deterred by their example from doing the like. Having laid down this maxim as the sanction for capital punishments, he found, of course, no difficulty in bringing all lesser cases of punishment under the same rule.

And here we cannot refrain from noticing a striking passage, which may be adduced in support of the generally received theory, from a philosopher of a very different stamp from the one whom we have been just considering. It occurs in the 'Protagora' of Plato.*

'If you well consider,' he says, 'what is it that punishment effects upon transgressors, this will itself prove that men use means to promote

We are indebted for this quotation to the very excellent Essay of Mr. Pritchard of Ball. Coll., with whose view of the whole question of punishment we most fally

concur.

:

virtue for as no one punishes transgressors with this view and upon this account, because they have transgressed, except a person take vengeance as on a brute but whoever attempts to punish on grounds of reason, does so on account of the past transgression-for that which has been done cannot be made undone-but for the future, that neither the criminal himself, nor those who see him punished, may again do wrong he punishes them in order to prevent crime.'

carus

In spite, however, of the sanction which Plato's opinion lends this view of the question, we must say on this occasion quidem Socrates, carior autem veritas : It was no fault in that great philosopher, that, being educated in an imperfect system, he did not fully comprehend, though he might occasionally catch a glimpse of, those high views of the origin and end of society which revelation opens to us. With him, society was of itself an end-a type, as far as a system framed solely for earthly objects could be a type, of the Christian church-of which all the members should be linked together by a community of faith and adoration, and whose end and aim should be to do the will of God on earth as it is done in heaven. Considering his Republic as the great end of human existence, he needed no other sanction or object for his laws, than their tendency to promote its happiness and welfare; and thus neglected to inculcate, as being unnecessary to his system, the doctrine, that crime was to be punished on account of its being hateful to God, as well as on account of its being destructive to man.

We hold, then, that there is one essential element in the true doctrine of punishment, which is entirely wanting in the systems we have just been considering. This element is the principle of retribution-retribution, not in the literal sense of the lex talionis, which, like the Jewish law, required an eye for an eye, and a tooth for a tooth-but in the sense of satisfaction to the offended majesty of the law, whether human or divine. If it be asked, where do we find an authority for this doctrine, we answer, in the revealed word of God, as well as in the natural instincts of mankind—instincts which, happily, cannot altogether be eradicated by the fine-spun theories of philosophy and science.

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1. Such expressions as-That man deserved a severer sentence,' or, his punishment exceeded his offence,' surely have reference to something more that the prospective consequences of impunity or undue severity; they show that the question of desert enters largely into the view which unsophisticated persons take of the relation of punishment to crime; and declare, as plainly as language can speak, that the moral guilt of the offender is the true cause of his punishment. In confirmation of this view, we need only add the testimony of Bp. Butler, who says,

"That though civil government be supposed to take cognizance of actions in no other view than as prejudicial to society, without respect to the immorality of them; yet as such actions are immoral, so the sense which men have of the immorality of them, very greatly contributes, in different ways, to bring offenders to justice; and that entire absence of all crime and guilt in the moral sense, when plainly appearing, will almost of course procure, and circumstances of aggravated guilt prevent, a remission of the penalties annexed to civil crimes, in many cases though by no means in all.'

So also if we consider the terms in which the Bible speaks of the civil magistrate, describing him, not as the protector of society, but as 'the minister of God, an avenger to execute wrath upon every one that doeth evil,' we shall discover nothing vindictive or presumptuous, but on the contrary everything just and reasonable in the idea that punishment, lawfully inflicted on offenders, is to be regarded as a penalty no less that a warning, and might be as justly exacted in a desert as in a city.

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2. Again, there is something very significant in the express words in which the sentence of death is denounced against the murderer. Whoso sheddeth man's blood, by man shall his blood be shed; for in the image of God made He man;' words which singularly correspond with the still more fearful woe denounced in the New Testament against the impure and profane• If any man defile the temple of God, him will God destroy; for the temple of God is holy-which temple ye are. In both these cases, one of which at least falls within the scope of human laws, the predominant idea implied in the sentence of punishment is clearly that of retribution.

3. There was a time, we all know, when the exercise of retributive justice was expressly delegated by the Supreme Being to human hands. As far as was consistent with the moral constitution of man, crime, under the Jewish polity, was made the exact measure of punishment. No one who attentively considers the Jewish code can fail to perceive, that its enactments were far more consonant with the moral sense of mankind, far more calculated to promote the true ends of justice, the moral government of the world, and the honour of its Divine Author, than all the complicated provisions and amendments which the artificial character of modern society has introduced into every subsequent code of jurisprudence. Society has, indeed, evinced a tenderness in all matters that affect its own rights, which would not have appeared extraordinary but for the manifest unconcern with which it regards offences against laws more peculiarly sacred. In the Jewish law, no offences against what are called the rights of property were punished with death. On the other hand, several crimes of which our laws scarcely take cognizance at all, as blas