If, for example, a personal assault is committed of the most cruel, aggravated, and violent nature, the offender is seldom punished in any other manner than by fine and imprisonment: but if a delinquent steals from his neighbour secretly more than the value of twelve-pence, the Law dooms him to death. And he can suffer no greater punishment (except the ignominy exercised on his dead body,) if he robs and murders a whole family. Some private wrongs of a flagrant nature are even passed over with impunity: the seduction of a married woman—the destruction of the peace and happiness of families, resulting from alienating a wife's affections, and defiling her person, is not an offence punishable by the Criminal Law; while it is death to rob the person, who has suffered this extensive injury, of a trifle exceeding a shilling.
The Crime of Adultery was punished with great severity both by the Grecian and the Roman Laws.—In England this offence is not to be found in the Criminal Code.—It may indeed be punished with fine and penance by the Spiritual Law; or indirectly in the Courts of Common Law, by an action for damages, at the suit of the party injured. The former may now (perhaps fortunately) be considered as a dead letter; while the other remedy, being merely of a pecuniary nature, has little effect in restraining this species of delinquency.
Like unskilful artists, we seem to have begun at the wrong end; since it is clear that the distinction, which has been made in the punishments between public and private crimes, is subversive of the very foundation it would establish.
Private Offences being the source of public crimes, the best method of guarding Society against the latter is, to make proper provisions for checking the former.—A man of pure morals always makes the best Subject of every State; and few have suffered punishment as public delinquents, who have not long remained unpunished as private offenders. The only means, therefore, of securing the peace of Society, and of preventing more atrocious crimes, is, to enforce by lesser punishments, the observance of religious and moral duties: Without this, Laws are but weak Guardians either of the State, or the persons or property of the Subject.
The People are to the Legislature what a child is to a parent:—As the first care of the latter is to teach the love of virtue, and a dread of punishment; so ought it to be the duty of the former, to frame Laws with an immediate view to the general improvement of morals.
"That Kingdom is happiest where there is most virtue," says an elegant writer.—It follows, of course, that those Laws are the best which are most calculated to promote Religion and Morality; the operation of which in every State, is to produce a conduct intentionally directed towards the Public Good.
It seems that by punishing what are called public Crimes, with peculiar severity, we only provide against present and temporary mischiefs. That we direct the vengeance of the Law against effects, which might have been prevented by obviating their causes:—And this may be assigned in part as the cause of Civil Wars and Revolutions.—The Laws are armed against the powers of Rebellion, but are not calculated to oppose its principle.
Few civil wars have been waged from considerations of Public Virtue, or even for the security of Public Liberty. These desperate undertakings are generally promoted and carried on by abandoned characters, who seek to better their fortunes in the general havoc and devastation of their country.—Those men are easily seduced from their Loyalty who are apostates from private virtue.
To be secure therefore against those public calamities which, almost inevitably, lead to anarchy and confusion, it is far better to improve and confirm a nation in the true principles of natural justice, than to perplex them by political refinements.
Having thus taken a general view of the principles applicable to Punishments in general, it may be necessary, for the purpose of more fully illustrating these reflections, briefly to consider the various leading Offences, and their corresponding Punishments according to the present state of our Criminal Law; and to examine how far they are proportioned to each other.