In the Encyclopedia a view has been given, from Blackstone's Commentaries, of the general nature and objects of crimes and punishments; and we shall now briefly notice the present state of this branch of science; reserving some farther observations on the whole subject, till we reach the article Punishment.

Experience abundantly and very lamentably proves, that a perfect code of laws, whether civil or criminal, is a matter of marvellously slow growth. Criminal law everywhere begins, where, amongst savages, it continues and ends, with the pursuit and gratification of the passion of revenge. Injuries, or presumed injuries, are punished according to the will and power of the injured. The first step in civilization is, the union of those who can avenge themselves for the protection of those who cannot. But, in some countries, ages elapse before, and in others it never happens, that any comprehensive view is ever attempted to be taken of the field of penal jurisprudence, an enumeration and classification of offences given, and the punishments deemed best adapted to prevent their recurrence annexed to them.

On the Continent, owing to a variety of causes, bolder efforts have been made in penal legislation than have ever been witnessed in England. The result has, undoubtedly, generally been far from successful; but this we may venture to say, that by such beginnings it is that the true course is pursued for the formation of a perfect penal code; and we can entertain no doubt that, rude as these efforts have been, the condition of the people, for whose use they were made, has been greatly benefited by them. Of all of them, it may be said, that they are greatly deficient in respect of humanity, and the establishing a just proportion between crimes and punishments; and, moreover, lamentably erroneous in the including cases unfit for punishment, and the excluding others fit for punishment, still leaving a vast discretion to the judges; but they have, however, to the extent of the surface which they have covered, rendered a knowledge of the penal law practicable, and given great facility to its improvement by the recordation of its provisions.

In order that some notion may be formed of the progress of this science, we shall give, from one or two of the codes of criminal law now before us, a sample of their most prominent features.

The famous code collected under the auspices of Charles V., and known under the name of "La Caroline" (Code Criminel de l'Empereur Charles V., Maestricht, 1779), and which, we are told in the preface (p. viii.), "is properly the collection and confirmation of the laws which have been from time immemorial in use in the tribunals in Germany," is a very elaborate work on penal jurisprudence; and particularly, is extremely copious and minute on the subject of torture, which was, at that time, deemed a highly efficient and indispensable instrument of criminal procedure.

The code commences, very properly, in respect of arrangement, with the judicial establishment; but, after all, leaves it indeterminate with respect to the manner in which it is to be composed, and omits to give any exact and precise definition of the relative power of each of the several classes of individuals that enter into its formation. It appears clearly, that there were to be certain established judges, and that to them were to add themselves all the nobles, "en qualité de juges et assesseurs;" not precisely fixing in what quality they are to act, or whether the decision was ultimately to rest with the judges, under the advice, simply, or under the control of those other judges or assessors. Next follows, not, as might have been expected, an enumeration and definition of offences, and of the punishment annexed to them, but a minute account of cases, consisting of forty-one articles, in which torture may be employed to extract a confession of guilt; afterwards come several articles respecting proof by witnesses, and then the distribution of offences, not as such, but by the punishment annexed to them. An outline so entirely inconsistent with the true principles of criminal law, may be expected to be filled up with very little that is calculated to advance the ends of penal justice.

In this code the torture, as has been already observed, is most extensively employed. By article xli. p. 83, it is provided, that it shall be a sufficient ground for the applying torture, in order to produce confession, in the instance of a man accused of incendiarism, whenever, in other respects, his conduct shall be suspicious. It is upon similar slight grounds throughout the code, that this most dread-

ful instrument is brought into action. In other respects the code presents nothing remarkable; it is extremely defective in the arrangement of offences, but contains some observations with regard to the indications of guilt from accompanying circumstances, that might not be found altogether useless at the present day.

In the collection of edicts for the government of Corsica, * is the criminal code which, under the direction of Louis XV., was prepared for that country. After enumerating the most prominent species of offences, such as treason, murder, theft, and homicide, and giving a view, very far short of a complete one, of the field of criminal law, the framer of this code, in Title ix. (Vol. I. p. 24), has this article: "In respect of all other crimes and offences which are not mentioned above, we leave it to the prudence of the judges to condemn those who shall be guilty of them, to the punishment fitting for them, according to the exigence and circumstances of the case; not, however, allowing them the power of punishing with death, either natural or civil, except in the cases above enumerated;" leaving them, however, a considerable latitude of power in the cases so unprovided for, that is, in the cases in which they were thus invested with despotic authority, namely, that of punishing by hard labour in the gallies, either for a limited period or for life.

In the above two instances, we have specimens of two penal codes, formed at a comparatively early period. Next follow examples of others of a much more modern date. The first was drawn up by the direction and under the sanction of the King of Bavaria, by M. Bexon, and was published by him in a large folio volume at Paris, in 1807. It professes to contain a complete system of criminal jurisprudence, including punishments and police. Nothing, we think, can be more obvious, than the ingredients of which a code of criminal law ought to consist. The object is to prevent the doing certain acts. The means of preventing their being done is, by declaring that their being done shall be attended with certain painful consequences, to be attached under certain prescribed forms. However mankind may differ as to what acts are to be considered as offences, and what are the most effectual punishments to be adopted for the prevention of them, the general outline of the order we have just stated for providing against them, appears to be so simple and clear, that it is matter of no small surprise to observe that any other should be adopted. If a thing be meant to be prevented, it ought surely to be stated, and that in the most simple and intelligible terms, what it is that is so meant to be prevented, and, in like terms, the consequences that will ensue in case the inhibition be infringed.

M. Bexon has, however, thought it expedient to pursue a different course. He begins with a system of police, under the title of Legislation de la Sureté; and then proceeds to state the several purposes

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* Code Corse, ou Recueil des Edits, &c. publiés dans l'Isle de Corse depuis sa soumission à l'obéissance du Roi. Paris, 1778. Now, the characteristic feature of a system of police is, that it is to serve for the prevention of offences; and thus we have, at the outset, the rules of a system of administration employed for the prevention of certain acts that yet remain to be stated. In the subdivisions of his work, an equal degree of confusion prevails. Take, for example, his principal heads, which are as follow:—1. Principes généraux. 2. Des auteurs, des complices et des fauteurs, des délits et des crimes. 3. Des peines en général, et du mode de leur exécution. 4. De la recidive, de l'influence de l'âge sur le caractère et la durée des peines. 6. De l'autorité paternelle et de famille. 7. Du devoir des juges, dans l'application et la graduation des peines, de circonstances excusantes, atténuantes, et aggravantes. 8. Des actions et de leur prescription. 9. Des absens ou contumace, et de la prescription des condamnations. 10. Des frais des procès criminels, et des dommages intérêt. 11. De la grâce. 12. De la diminution de la durée des peines, pendant leur cours, ou de la remission que le coupable peut obtenir par son travail et son repentir. 13. De la réhabilitation."—The disposition thus made of the matter of this part of the work in question is neither clear nor convenient. Crimes, punishments, tribunals, and procedure are mixed together, instead of being kept separate and distinct as they ought to be.

With regard to the penal code itself, he has adopted the old principle of division, and has classed offences under the several heads of, 1. Crimes against the public. 2. Crimes against persons. 3. Crimes against things. But what is new in his work, is the distribution of these several species of offences into three distinct classes, according to their supposed delinquency, and which he has denominated, 1. "Contraventions et fautes." 2. "Delits." 3. "Crimes." This is obviously an extremely unnatural and inapposite system of division, as it supposes that each class of offences is susceptible of only three stages of aggravation or extenuation; while, in fact, the same act is capable of varying, and continually does vary, and that by extremely minute steps, throughout all the gradations of guilt.

M. Bexon's work was followed by the French penal code, which was decreed the 12th February 1810, and promulgated the 22d of the same month, and now forms the criminal code of France. The whole of the penal code itself, including punishments, is comprised in 114 moderately sized 8vo pages. It begins by declaring, that a violation of the law, cognizable by the police, is a contravention; that a violation of the law that is visited by a correctional punishment, is an offence; and that a violation of the law, that is visited by an afflictive and infamous punishment, is a crime. The several species of punishments employed are then enumerated, and are, 1. Death. 2. Hard labour for life. 3. Transportation. 4. Hard labour for limited periods. 5. Seclusion. 6. The Carcan (analogous to the pillory). 7. Banishment. 8. Civil degradation. 9. Imprisonment during a limited period in a house of correction. 10. Suspension, temporary, of certain civil rights. 11. Making satisfaction to the party injured. To these are added, in the cases specified,—the drawing a ball, to be attached to the feet; imprinting on the right shoulder, by means of a red-hot iron, certain letters; standing on the carcan, having above their heads affixed a writing in large and legible characters, mentioning the name of the patient, his profession, residence, punishment, and the occasion of it. Some of the punishments are also attended with certain civil disabilities, of which some are temporary, others perpetual. With regard to forfeiture, which figures so great an extent in our own penal code, it is declared not to attach in any case as the necessary consequence of conviction, but to have place only when expressly pronounced to be a part of the punishment, and the instances in which it is used are comparatively few; and even when employed, the forfeited property remains liable to all just incumbrances, and to the obligation of furnishing to the children, or other descendants, a half of such part of their portion, as they could not have been deprived of by their father.

Offences are then divided into two classes. I. Offences affecting the public. II. Offences affecting individuals. Under the first class, the principal offences that are comprised are, Offences against the exterior and interior of the state, levying war, counterfeiting the coin, and malversation on the part of public functionaries, ecclesiastical and civil. Under the second head, Offences affecting particular assignable persons, such as murder and other personal injuries, perjury, and offences against property.

The manner in which the matter in this work is disposed, though not free from objection, indicates a vast progress in the science of penal legislation, both as it regards the humanity displayed in the catalogue of punishments, and the comparative lenity with which they are applied. There are some, however, in respect of which it would have been desirable to have found them less extensively employed; particularly the carcan, which is applied to a very wide class of offences; and as to which it is remarkable, that so nearly about the same period as that at which it figures so extensively in this penal code, the use of it should have altogether, with the exception of the case of perjury, been abolished in England.

In examining this code, it is impossible not to be struck with the undignified light in which the judges and officers of justice are placed; and the small value that is set on their integrity and honour, as qualities calculated to deter them from the violation of their duties. In the section relating to the administrative and judicial authority, it is declared that, whenever any judge shall, after it has been notified to him that a cause has been removed before a superior tribunal, proceed to pronounce judgment notwithstanding, he shall be punished by a fine of not less than 16 francs, nor greater than 150 francs; so again, wherever any judge shall enter the house of a citizen, in cases in which the law shall not have invested him with authority so to do, or in a manner not prescribed by the law, he shall be punished by a fine of not less than 16 francs, nor greater than 200 francs; and there are several other cases in which the misconduct of judges renders them subject to penalties similar in amount. To say the least of it, the policy of thus setting a price in money upon infractions of magisterial duty, is extremely questionable. In some cases it may exceed, but in most will probably fall short of the mischief; and it tends to produce a habit of laxity in the exercise of the judicial functions, and to diminish the confidence of the people in their due administration. For other cases of malversation on the part of a person exercising the judicial functions, the punishment is suspension, followed by such other penal visitation as the nature of the case may require.

From the time of the Emperor Charles V. to the period of the promulgation of the French criminal code, a vast progress has undoubtedly been made on the Continent, on the subject of penal legislation; but notwithstanding the examples that have thus been set us abroad, the British legislature has shown no disposition to collect into one body of criminal jurisprudence the scattered fragments of law which now constitute the penal system of this country. It is reported, indeed, to have been said by Mr Wilberforce, in his place in the House of Commons, "That he well remembered that a great and lamented public character (Mr Pitt), at an early period of his life, had intended to have a digest made of the whole of our criminal code, with a view of lessening in a great degree the number of capital punishments which it contained, and the objections to which it was impossible to confute."* It is impossible sufficiently to lament that the intention thus said to have been formed was never carried into execution. Had the plan been attempted by Mr Pitt, little doubt can be entertained but that the objections which are now found to exist to the making even the most minute change in the criminal code, would have wholly vanished.

The greatest authorities, both dead and living, might be quoted in support of the necessity of a reformation in our system of criminal jurisprudence; but none appears entitled to more weight than that of Sir William Blackstone, who has expressed himself very decidedly in favour of a revision of our penal code. (Commentaries, B. IV. Ch. I.) That he did in fact entertain, or at least that he had very sufficient reason for entertaining this opinion, up to the time of his death, we had, till lately, no reason to doubt. The contrary, however, is now stated to be the case, and that on no less an authority than that of the present Lord Chancellor. In the debate that took place in the House of Lords, May 24, 1811, on the subject of Sir Samuel Romilly's bills for repealing the capital punishments annexed to the offences of stealing in dwelling-houses and shops—stealing on navigable canals, and in bleaching-grounds, in Great Britain and Ireland—the Chancellor is represented to have spoken what follows:—"Considerable stress has, indeed, been laid on the authority of Judge Blackstone, as adverse to the present system. But I think his opinions on this subject, as contained in his Commentaries, are to be regarded as the offspring of an eager rather than a well-informed mind. It should be remembered, that the work was written at a period when experience and observation had not matured his judgment. I have, however, reason to believe, that after he had learned to listen to those great teachers in political science, his opinions underwent a considerable change; and that, in the latter part of his life, he saw the wisdom of the principles by which our criminal code is at present regulated." (Montague's Collection of Opinions, &c. Vol. III. p. 279.) Now, the sum of what is to be collected from Sir William Blackstone's Commentaries upon this subject is, that offences and punishment ought to be proportioned to each other by the legislature; and that capital punishments ought neither to be appointed for, nor inflicted in, the case of light offenses. He says, (B. IV. Ch. I.), "It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than one hundred and sixty have been declared, by act of Parliament, to be felonies, without benefit of clergy; or, in other words, to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of offenders." If, then, Sir William Blackstone really did, as is stated, change his opinion upon this subject, he must have come to the conclusion, that capital punishments, if provided for offences, whether inflicted or not, for such is represented as being the genius of the English criminal code, diminish rather than increase the number of offenders. But that the learned Judge ever did arrive at any such conclusion, notwithstanding what has been so confidently said, we have the strongest possible reason for doubting; we have, indeed, his own evidence that he did not; for we cannot bring ourselves to be guilty of so foul a reproach to the memory of this learned and eminent man, as, for a moment, to suppose, that on so important a point, involving the welfare of the whole community, he could have suffered his Commentaries to have been handed down, in their present state, to posterity, without taking pains to leave some indisputable record of the change that his opinions had undergone: he would not have left mankind in any such dilemma, as that of having to choose between his own solemnly recorded and deliberate judgment, and the insinuation of an alleged renunciation of that judgment.

But, however, with regard to this point, the fact may have been, we are much more inclined to adopt Judge Blackstone's opinion supported by reasons, than we are his opinion unsupported by any reasons; confirmed as his early notions have been, in our estimation, by the testimony of all subsequent experience.

One thing, at least, is quite clear, that whatever opinion may be entertained respecting the most effective system of penal law, the system ought to be rendered perfectly uniform, and that for offences equal in respect of enormity, punishments equal in

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* Opinions on the Punishment of Death, selected by Basil Montague, Vol. II. p. 151. respect of degree ought to be appointed. That in the penal code of this country, no such uniformity exists; but that, on the contrary, for offences essentially differing in degree, the same punishments are provided, the slightest investigation of our system of criminal judicature is sufficient to show. To steal a sheep,—to steal to the amount of five shillings privately in a shop,—or to commit the most atrocious murder, are all, at least in so far as the amount of the punishment is to be considered as a test (and for this purpose, there is no other criterion regarded by the English law), as offences equal in their degree of enormity.

It is impossible, then, that every one, independent of feelings of humanity, who has a due regard for his own personal security, and that of his reputation and property, must not desire to see a thorough reformation made in a branch of law thus imperfect and ill adapted to its professed ends. Let us see what are the materials of which we are in possession for this purpose.

With regard to the formation of a penal code, meaning the declaring what acts ought to be regarded as offences,—the reasons why they ought to be so regarded,—the giving a concise and intelligible description of them, and placing them in a clear and conspicuous order,—we have, in Mr Bentham's Traité de Legislation Civile et Pénale, not, indeed, a penal code completed and perfected in all its parts, but all the instructions that are requisite for the forming one, and which, to be adapted to use, will require merely the subordinate talent of filling up the outline that he has prepared. Previously to his time, Montesquieu, Filangieri, Beccaria, and others, but particularly Beccaria, had thrown most important lights upon this branch of science; but it is Mr Bentham alone who has travelled over the whole field of legislation,—who has shown the intimate connection that exists between all its several parts, and particularly the mutual dependence and relation of the civil and penal codes, and the impossibility of framing either of these portions of law without having previously taken a comprehensive survey of the whole. For the details, we must refer to the work itself. All that we can allow space for here is, merely to give an outline, and a short specimen of the principle of division pursued by the author.

Offences (Traité de Legislation, Tom. I. p. 172.) he divides into four classes:

1. Private offences. 2. Self-regarding offences. 3. Semi-public offences. 4. Public offences. Under these four general heads, and the combination of them, all offences may be classed and arranged.

Private offences. If an individual suffers from an offence, it must be either immediately in his person, or relatively, in respect to exterior objects. Exterior objects are either things or persons; things in which he has a property; persons, to whose services he has a right. The right to the services of certain persons constitutes the fictitious entity of condition in life. He has also an expectation of obtaining and preserving their good will, depending upon his honour or reputation. Reputation is therefore a species of valuable property, giving a title to gratuitous services. It is evident, then, that a man can suffer only in so far as he is affected in one or other of these points, which gives the division of private offences. 1. Offences against the person. 2. Against the property. 3. Against the reputation, and against the condition in life.

I. Offences against the person are comprised under the following heads: 1. Simple corporal injuries. 2. Irreparable corporal injuries. 3. Simple mental injuries. 4. Wrongful restraint. 5. Compulsion. 6. Banishment. 7. Confinement. 8. Imprisonment. 9. Homicide.

II. Offences against the honour or reputation. 1. Defamation. 2. Insulting language. 3. Usurpation of another's reputation. 4. Interception of another's reputation.

III. Offences against the person and honour. 1. Personal insults. 2. Threats. 3. Seduction. 4. Seduction by threats. 5. Rape.

IV. Offences against property. 1. Wrongful withholding of property. 2. Interception of property. 3. Divestment of property. 4. Usurpation of property. 5. Wrongful investment of property. 6. Non-redemption of services. 7. Waste of property. 8. Illegal detention of property. 9. Withholding the enjoyment of property. 10. Wrongful occupation of property. 11. Theft. 12. Fraudulent acquisition, namely, under false pretences. 13. Clandestine detention. 14. Extortion. 15. Insolvency.

For the manner in which these divisions are pursued, we must refer the inquisitive reader to this valuable work. This portion is followed by a view of the distribution of the parts of a penal code. Its titles are either general or particular. General titles are those under which are placed matters that belong in common to a great number of particular titles. The catalogue of general titles is as follows: 1. Persons under the authority of the law. 2. Means of justification. 3. Causes of aggravation. 4. Causes of extenuation. 5. Causes of exemption. 6. Compensation, or other satisfaction to be given to the party injured. 7. Punishments. 8. Of offences, principal and accessory. 9. Co-delinquents. 10. Violation of confidence. 11. Fraud. 12. Offences, positive and negative.

As to particular titles, they are all cast after the same mould. If the first is known, all the others are known. Here follows an example:—Title I. Simple corporal injury.—Section I. Text. Simple corporal injury is, where, without lawful cause, an individual occasions, or contributes to occasion to another, pain or uneasiness, without its being followed by any bodily injury.

To each of the clauses, requiring exposition on this definition of the offence, are appended notes, either referring to the general titles, or giving the requisite explanation, as the case may require.

By thus classifying offences in a clear and natural manner, and placing under each head of offence the punishment annexed to it, a correct and complete view may, with the utmost possible facility, be taken of the whole, and of every part of the body of penal law. Recollection of its provisions is thus aided, and the difficulties of promulgation reduced to their smallest possible amount. We are extremely glad to hear that these enlightened views, on the subject of criminal legislation, are in the way of receiving a practical application in Geneva. The citizens of that republic have appointed a commission, of which Mr Dumont, the editor of Mr Bentham's work, is a member, for drawing up a code of criminal law, which, when completed, will be laid before the legislature for its sanction. Considerable progress has, we understand, been made in this most important work; and if the labours of the commission should be approved by the delegating bodies, we may expect to see a system of criminal jurisprudence, formed upon Mr Bentham's principles, in operation in the course of the ensuing year. We regret that the experiment should be destined to be tried upon so narrow a scale, and where many parts of a penal code, indispensable in a more extended community, will find no application; but we cannot sufficiently applaud the perseverance and admirable skill that must necessarily have been displayed by Mr Dumont, in expounding the advantages of Mr Bentham's system, in order to have introduced the consideration of so large a reform, as that of the adoption of an entirely new penal code.

Although no attempt has been made in this country to substitute to the existing criminal law an entirely new code, or rather, which is all that is required, with some considerable modifications, to collect the scattered fragments of our criminal law into one properly arranged body, and to apply to them the sanction of the legislature, yet the subject of penal jurisprudence has lately undergone considerable discussion in both Houses of Parliament. Very soon after he had obtained a seat in the legislature, Sir Samuel Romilly brought in a series of bills, the object of which was to mitigate, in certain specified cases, the severity of the penal law, by substituting for the punishment of death, transportation for life or for limited periods. The first bill which he brought in, and which afterwards passed into a law (48th Geo. III. c. 129.), was for repealing so much of the statute of the 8th of Elizabeth as takes away the benefit of clergy from persons stealing privily from the person. This was followed by bills to repeal acts having the effect of inflicting the punishment of death for stealing to the amount of 5s. privately in a shop, * for stealing to the value of 40s. in a dwelling-house, for stealing to the amount of 40s. on navigable rivers, and for stealing from bleaching-grounds both in England and Ireland. Of these bills the two last only have been adopted by the legislature; the rest, after passing the House of Commons, have been lost in the House of Lords. The principle upon which the above alterations were proposed, was in each instance the same, that of rendering punishments more certain, and thus offence less frequent, by removing the obstacle to the prosecution of criminals, which the severity of the penal laws occasioned. And the question throughout the discussions to which these bills gave occasion, was simply this, whether a severe punishment, never or scarcely ever inflicted, and which, in numerous instances, was indisputably proved to have had the effect of giving absolute impunity to delinquents, was, by the terror that it was alleged to excite, preferable to a less severe but uniformly inflicted punishment; and so obviously adapted, in respect of its amount, to the magnitude of the crime, that the most humane and conscientious would feel it a duty, instead of a reproach, to lend a zealous and active assistance to the giving effect to it. We forbear for the present entering into the arguments that were employed on this occasion, reserving what we have farther to say, to the article on Punishment, where we propose entering more fully into the whole subject. In the mean time, we cannot but entertain very confident expectations, that the reforms which Sir Samuel Romilly has projected will ultimately prevail. The apparent success that he has hitherto obtained has not indeed been greatly encouraging. But from all that we can learn, we are convinced that his high character, and the sound, discreet, practical, and intelligible views that he has connected with the subject, have obtained for it a much larger portion of the public attention than it has ever hitherto been its fate to experience. Almost down to the present period, mankind appear to have thought that penal law was a matter that concerned only lawyers and criminals; that lawyers alone could understand it, and that criminals are the only persons interested in the state of it. Different notions appear to be now, however, rapidly and extensively spreading, and principally, we believe, from the discussions to which Sir Samuel Romilly's bills have given rise. Every reflecting man is struck with the weakness of those reasonings, upon the faith of which it was that three of the above bills were rejected,—reasonings which involve the contradictory proposition, that the apprehension of the punishment of death operates as a preventative of certain crimes, though the returns show that it has never been inflicted on the crimes in question.