the offence and the character of the offender; that is to say, (1) on the heinousness or malignity of the offence against the public, and (2) on the heinousness or malignity of the offender. Beyond all question, theft, burglary and murder are essentially different in their nature, and should have different punishments attached to them by the State. So are fraud, perjury, forgery, and wilful fire-raising, and these also should be differently dealt with. History shews that, in a rude and barbarous state of society, corporeal punishment and death were almost the only punishments which existed, and that no attempts were made to graduate punishment to crime.

It is absolutely impossible to proportion the punishment to the crime; for the same nominal punishment is not the same real punishment in every case of the same nominal crime. A fine which may be nothing to one person may be ruin to another; and imprisonment, which to one may be no punishment at all, may be the most poignant punishment to another. An imprisonment which would be nothing to a healthy young man might be death to a delicate old man. In punishment, considerable latitude ought to be given to the Judge. According to the circumstances of an offender, as regards condition, position, age, and sex, the same nominal punishment will be very different from the real punishment. All modern civilised countries have long ago abandoned the old and barbarous, and yet not unnatural, law of retaliation as unjust, harsh and cruel. The law of retaliation is very common in all early legislation-for example, a tooth for a tooth, a hand for a hand, a foot for a foot, a wound for a wound.-Vide Wilkins' Laws of the AngloSaxons, p. 30, Article 30. If it were applicable in all cases, as it certainly is not, the criminal labours of the Legislator would be greatly simplified; for, then, all that the Legislator would require to do would be to pass a law that every offender

should suffer an evil similar to that which he had inflicted. In many cases it is inapplicable, e.g., in offences against the State, and other grave offences. Mahomet found the Law of Retaliation amongst the Arabians, and he adopted it; but he was no great legislator. Whatever the punishment, it is of vital importance that it should be definite, prompt, and inevitable.

If we are entitled to imprison offenders, we are also entitled to regulate their diet and mode of life in prison, and to combine prisoners in groups, or separate them from each other by solitary confinement. Separation by solitary confinement may be, and is, a highly useful, and sometimes necessary form of punishment. But it is one which ought not to be made general. Too much of it will overthrow the powers of the mind, and produce incurable melancholy, and madness. The most perfect form of punishment is that which resembles family punishment, i.e., in which the offender is brought to a sincere acknowledgment of the evil he has done, and also of the justice of his sentence. On the other hand, no form of imprisonment is worse than promiscuous imprisonment, where the motives to crime are strengthened, the restraints on crime are diminished, and the skill in the perpetration of crime is increased. Of all forms of imprisonment, that which is combined with useful labour is the best; for it is economical and reformative. If it does not pull up the seeds of corruption by the roots, it checks their growth, and tends to implant newer, better, and healthier principles in the heart than existed before. It also reduces rapacity and sloth to a minimum. It was once unpopular in England. It is not so now, and does not deserve to be so.

Penal justice is not adverse to human happiness. It is, or it should be, in conformity to it. Some men condemn certain modes of punishment, e.g., imprisonment accompanied with penal labour, as a violation of the natural

rights of man. None, say they, should be reduced to a state of slavery. No doubt, all punishment is an infringement of liberty; and no one submits to it except under compulsion. But, then, if the objections of such men are well founded, it would follow, says Bentham, "that liberty ought to be left to those who abuse it, and that the liberty of malefactors is an essential part of the liberty of honest men." As a general rule, no harsh, cruel, and unnecessary punishment ought to be inflicted on an offender, and the road to an honest life should be made as wide as is consistent with the general interests of society. No criminal ought to be made to feel when he goes into, or departs from, prison that hope must be left behind him; or, in the words of Dante, in describing Tartarus,

"Lasciate ogni speranza, voi ch'entrate,"

but that his future life may be onward and upward towards Elysium, and the Mansions of the blessed. The pleasures of hope are a modification of joy; and all should be encouraged to work for the rewards of labour in art, literature and science. Fear is a miserable instrument of government, and is never more than temporarily effective. To all persons the forfeiture of a good reputation by crime is a serious loss. It has often a direct pecuniary value, as well as many important personal consequences connected with the loss of friends and acquaintances, and even with the means of gaining an honest livelihood.

In all barbarous ages, the treatment of offenders has always been harsh, and cruel and unjust; and men and women, the guilty and the innocent, have been obliged to pass through ordeals, and endure tortures which, although inflicted under the mask of Justice, were mockeries of Justice, and were little less than atrocious and abominable crimes: For example, criminals, in olden. times, and not so long ago, were left in their prisons

to be supplied with the bare necessaries of life by the benevolent, or, if not so supplied, to die by starvation. Very severe punishments do not diminish crime. When death is inflicted, no cruelty should accompany the punishment. "All beyond simple death," said Montaigne, 'appears to me to be cruelty;" and so it does to me. The Constituent Assembly of France, in 1789, abolished all tortures in punishments; and the Code Napoléon prescribed beheading as the death punishment in France. The infliction of cruel or of infamous punishments is apt to recoil on those who inflict them.

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For punishments to be just, they must be necessary. To produce good makes not a punishment just. I do not admit the possibility of injustice being useful. Further, legislators should punish the act, and not the bare intention; for the will is entirely out of the power of human laws. Legislation should always try to equalise the punishment to the crime; for when a severe punishment is inflicted on a petty crime, moral distinctions in men's minds vanish, and indignation against the laws and pity for the criminal naturally spring up in the mind. Reason should predominate over authority, and determine the origin and extent of the submission to be conceded to authority.

Thorrilon divides all punishments into three classes: namely, capital, involving actual death; afflictive, meaning civil death, or perpetual imprisonment; and correctional, with the view to the improvement and amendment of the criminal. While he denies that we have a right to inflict actual death for any crime, he holds that we have a right to defend ourselves from habitual criminals, in the interests of general society. Almost no one denies that, in the public interest, we have the right to inflict correctional punishments. These are meant to assure, but seldom effect, the reformation of the criminal, and his return to the public and private paths and practice of virtue.

If,

at the very least, we had not such rights of civil death and correctional punishment, society would be impossible.

I must now proceed to enunciate the accessory qualities which every punishment, independently of the elements which compose it, ought to have. It should be (1) proportionate to the offence; (2) personal and moral; (3) equal and real; (4) reformative and exemplary; and (5) remissible or reparable. These qualities are considered and developed at considerable length by Boresco, whose interesting and able exposition should be consulted by every student of Criminal Jurisprudence. I must here content myself with one or two observations on each head.

(1.) If punishment is not proportioned to the wrong, the offender rightly thinks he is unjustly dealt with, and impartial observers are apt to take the same view. The Legislator must determine certain classes of crimes, and affix punishments to them, more or less, and leave the Judge a considerable latitude between the maximum and minimum punishment.

(2.) Unless punishments are personal, the wrong people -that is to say, innocent people-are punished. Man is a social being; and his acts, good and bad, affect other people. Thus, when an offender is punished, his help and the fruits of his labour are taken away from his family, or dependents. This effect is inevitable. But we ought not deliberately to enlarge its scope. Moreover, the law, by its punishments, ought to ameliorate men-make them morally better than before; and also have their good for its end-e.g., the extirpation of bad or despicable sentiments, and the implanting of good and noble sentiments. Hence, beating, infamous marks, and tortures, which tend to degrade men, ought, as a general rule, to be avoided in punishment. These corporeal punishments harden the heart, brutalise the reason, and accustom the