convicted by the most undoubted proofs, will suf fer a less punishment than if he had confessed; and he will not be put to the torture to oblige him to confess other crimes which he might have committed, as he has not confessed the principal. But the confession being once obtained, the judge becomes master of his body, and torments him with a studied formality, in order to squeeze out of him all the profit possible. Confession, then, is allowed to be a convincing proof, especially when obtained by the force of toiture; at the same time that an extra-judicial confession, when a man is at ease and under no apprehension, is not sufficient for his condemnation.

All enquiries which may serve to clear up the fact, but which may weaken the pretensions of the crown, are excluded. It was not from compassion to the criminal, or from considerations of humanity, that torments were sometimes spared, but out of fear of losing those rights which at present appear chimerical and inconceivable. The judge becomes an enemy to the accused, to a wretch a prey to the horrors of a dungeon, to torture, to death, and an uncertain futurity, more terrible than all : he enquires not into the truth of the fact, but the nature of the crime; he lays snares to make him convict himself; he fears lest he should not succeed in finding him guilty, and lest that infallibility which every man arrogates to himself should be called in question. It is in the power of the magis trate to determine what evidence is sufficient to send a man to prison; that he may be proved innocent, he must first be supposed guilty. This is what is called an offensive prosecution; and such are all criminal proceedings, in the present century, in all parts of our polished Europe. The true prosecution

for

for information, that is, an impartial enquiry into the fact, that which reason prescribes, which military laws adopt, and which Arabian despotism allows in suits of one subject against another, is very little practised in any courts of justice. What a labyrinth of absurdities! absurdities which will ap pear incredible to happier posterity. The philosopher only will be able to read in the nature of man the possibility of there ever having been such a system. Ibid.

PUNISHMENTS, RULES RELATIVE TO.

Towards accomplishing the desirable object of perfection in a criminal code, every wise legislature will have it in contemplation rather to prevent than to punish crimes; that, in the chastisement given, the delinquent may be restored to society as an useful member.

This purpose may possibly be best effected by the adoption of the following general rules.

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1. That the statute law should accurately explain the enormity of the offence forbidden; and that it's provisions should be clear and explicit, resulting from a perfect knowledge of the subject; so that justice may not be defeated in the execution.

2. That the punishments should be proportioned and adapted, as nearly as possible, to the different degrees of offences; with a proper attention also to the various shades of enormity which may attach to certain crimes.

3. That persons prosecuting, or compelled so to do, should not only be indemnified from expence, but also that reparation should be made for losses sustained by the injured party, in all cases where it can be obtained from the labour or property of the delinquent. 4. That

4. That satisfaction shoule be made to the state for the injury done to the community by disturbing the peace and violating the purity of society.

Political laws which are repugnant to the law of nature and reason ought not to be adopted. The objects above-mentioned seem to include all that can be necessary for the attention of lawgivers. Colquboun.

Those injuries which affect the honour, that is, that just portion of esteem which every citizen has a right to expect from others, should be punished with infamy. Infamy is a mark of the public dis approbation, which deprives the object of all consideration in the eyes of his fellow-citizens, of the confidence of his country, and of that fraternity which exists between members of the same society. This is not always in the power of the laws. It is necessary that the infamy inflicted by the laws should be the same with that which results from the relations of things, from universal morality, or from that particular system, adopted by the nation and the laws, which governs the opinions of the vulgar. If, on the contrary, one be different from the other, either the laws will no longer be respected, or the received notions of morality and probity will vanish, in spite of the declamations of moralists, which are always too weak to resist the force of example. If we declare those actions infamous which are in themselves indifferent, we lessen the infamy of those which are really infamous.

The punishment of infamy should not be too frequent, for the power of opinion grows weaker by repetition; nor should it be inflicted on a num. ber of persons at the same time, for the infamy of many resolves itself into the infamy of none.

ceria.

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Bec

PUNISHMENTS, SEVERITY OF.

If punishments be very severe, men are naturally led to the perpetration of other crimes, to avoid the punishment due to the first. The countries and times most notorious for severity of punishments were always those in which the most bloody and inhuman actions and the most atrocious crimes were committed; for the hand of the legislator and the assassin were directed by the same spirit of ferocity which, on the throne, dictated laws or iron to slaves and savages, and in private instigated the subject to sacrifice one tyrant to make room for another.

In proportion as punishments become more cruel, the minds of men, as a fluid rises to the same height with that which surrounds it, grow hardened and insensible; and the force of the passions still continuing, in the space of an hundred years the wheel terrifies no more than formerly the prison. That a punishment may produce the effect required, it is sufficient that the evil it occasions should exceed the good expected from the crime, including in the calculation the certainty of the punishment and the privation of the expected advantage. All severity beyond this is superfluous, and, therefore, tyrannical.

Men regulate their conduct by the repeated impression of evils they know, and not by those with which they are unacquainted. Let us, for example, suppose two nations, in one of which the greatest punishment is perpetual slavery, and in the other the wheel I say that both will inspire the same degree of terror, and that there can be no reasons for increasing the punishments of the first which are not equally valid for augmenting those of the second to more lasting and more ingenious modes of

tor

tormenting, and so on to the most exquisite refinements of a science too well known to tyrants.

There are yet two other consequences of cruel punishments, which counteract the purpose of their institution, which was to prevent crimes. The first arises from the impossibility of establishing an exact proportion between the crime and the punishment; for though ingenious cruelty hath greatly multiplied the variety of torments, yet the human frame can suffer only to a certain degree, beyond which it is impossible to proceed, be the enormity of the crime ever so great. The second consequence is impunity. Human nature is limited no less in evil than in good. Excessive barbarity can never be more than temporary, it being impossible that it should be supported by a permanent system of legislation; for if the laws be too cruel, they must be altered, or anarchy and impunity will succeed.

Is it possible, without shuddering with horror, to read in history of the barbarous and useless torments that were coolly invented and executed by men who were called sages? Who does not tremble at the thoughts of thousands of wretches whom their misery, either caused or tolerated by the laws, which favoured the few and outraged the many, had forced in despair to return to a state of nature, or accused of impossible crimes, the fabric of ignorance and superstition, or guilty only of having been faithful to their own principles-who, I say, can, without horror, think of their being torn to pieces, with slow and studied barbarity, by men endowed with the same passions and the same feelings?a delightful spectacle to a fanatic multi

tude!

The useless profusion of punishments, which has never made men better, induces me to enquire whe

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ther