A punishment ought further to be, as far as the necessary defects of police and judicial procedure, will permit, certain ; and also, as far as the differences of human nature and circumstances will permit, equal.
If a punishment be painful, and the pain be of the proper amount, and if it be likewise tolerably equal and certain, it will be a good punishment.
The qualities just enumerated are those which it is most important that a punishment should possess. But it is sometimes thought desirable that a punishment should possess other qualities than those which we have enumerated.
1. Since the time wnen it has been generally understood that punishment ought not to be inflicted on a vindictive principle, the deterring principle of punishment (which necessarily involves an infliction of pain) has been sometimes overlooked, and it has been thought that the end of punishment is the reformation of the person punished. This view of the nature of punishment is erroneous in excluding the exemplary character of punishment, and thus limiting its effects to the persons who have committed the offence, instead of comprehending the much larger number of persons who may commit it. The reformation of convicts who are suffering their punishment is an object which ought to enter into a good pens' system ; but it is of subordinate importance as compared with the effect I of the punishment in deterring uncon victed persons from committing similar offences.
2. It is likewise sometimes thought that punishment is inflicted for the pur pose of getting rid of offenders, or of rendering them physically incapable of re peating their offence. Death has often been inflicted for this purpose; and bodily disablements of various sorts have been inflicted for the same end ; trans portation has likewise been recommended on the ground of its getting rid of con victs. This view of punishment errs in the same manner as that just examined ; inasmuch as it is confined to the persons who have actually committed offences. If all offenders were removed to a place of reward, they would be got rid off; but not punished. The principle of getting rid, or confinement, for the purpose of protecting society against the known dangerous tendencies of a person, is pro perly applicable in the case of insane persons.
A detailed account of the punishments which have been used in different nations may be found in different works on antiquities and law books. See, for the Greeks, Wachsmuth's Greek Anti quities, vol. ii., part 1, p. 181 : Her mann's Greek Antiquities, § 139 ; for the Romans,—Haubold's Lineamenta, § 147: for the ancient Germans and for Europe generally in the middle ages.— Grimm's Deutsche Rechtsalterthumer, b. v., ch. 3: for modern France, Le Code Penal, liv. 1 : and for England, Black
stone's Commentaries, vol. iv.
The subject of Secondary Punishments (the principal of which are in this coun try transportation and imprisonment) is treated under TRANSPORTATION. We will here make a few remarks on the subject of Capital Punishments.
An idle question is sometimes raised as to the right of a government to in flict death as a punishment for crimes, or, as it is also stated, as to the lawful ness of capital punishment. That a go vernment has the power of inflicting •apital punishment cannot be dpubted ; .4 ;xi order to determine whether that is rightfully exercised, it is neces to consider whether its infliction is, on the whole, beneficial to the commu nity. The following considerations may serve to determine this question respect ing any given class of crimes. Death is unquestionably the most formi dable of all punishments ; the common sense of mankind and the experience of all ages and countries bear evidence to this remark. Moreover, capital punishment effectually gets rid of the convict. It may be added, as subor dinate considerations, that death is the cheapest of all punishments, and that it effectually solves all the difficult practi cal questions which arise as to the dis posal and treatment of convicted crimi nals. On the other hand, capital punish ment, from its severity and consequent for midableness, is likely to become unpopu lar; and hence, from the unwillingness of judges and juries to convict for capital offences, and of governments to carry capital sentences into effect, uncertain. Whenever the infliction of capital punish ments becomes uncertain, their efficacy ceases, and they ought to be mitigated. An uncertain punishment is not feared, and consequently the pain caused by its actual infliction is wasted. Capital pun ishments ought therefore to be denounced only for crimes which would not be effectually prevented by a secondary punishment, and for which they are actually inflicted with as much con stancy as the necessary defects of a judi cial procedure will allow.
The writings on the subject of punish ment, and particularly of capital punish ment, are numerous. Sound opinions on the nature and end of punishment are contained in the works of Grotins and Puffindorf; but Beccaria's well known treatise first applied an en lightened spirit of criticism to the barbarous penal system of the conti nental states, but it cannot be read with much profit at the present time. The best systematic work on the subject is Bentham's Thebrie des Peines, edited by Dumont. Some valuable remarks on the subject of punishment may likewise be found in the recent writings of Arch bishop Whately and others respecting transportation.