suffering for the same offence; or, if they occasionally swerved from this principle, did it only for the purpose of punishing the rich and the powerful in the proportions of those advantages, by which they might have been preserved from the commission of crimes.*

"In the case of a crime deserving death," says Loysel,+ "the villein shall be hung, and the noble beheaded:" "i. e." say the commentators, "where the crime is not of a description in itself disgraceful, though unpardonable; for in that case no distinction ought to be made-agreeably to the regulation immediately consequent upon the first: in cases, however, where the noble shall have been convicted of a debasing offence, he shall suffer as a debased man." I ask again, What species of crime can that be, which incurs death without incurring infamy?

XII.

OF THE PUNISHMENT OF HANGING.

THIS was known in the first ages of the French monarchy. It was occasionally inflicted upon robbers. Under the third race of sovereigns, for a long time it was the only mode of punishment in use. To this day, it is almost exclusively adopted in Italy.|| By the Saxons, the adultress was compelled to hang herself: she was then thrown upon a funeral-pile, over which was suspended the body of her paramour. At Rome, it was contrary to law to strangle virgins. The scrupulous Tiberius, in his horror of illegality, ordered them to be previously violated by the hangman,

* See Lysias.

Tit. Des Peines, Regl. 28.

Among others, M. Vouglars, Instit. of Crim. Law, viii. 2.

§ See Gregory of Tours, vi. &c.

|| In some cases, the convict is knocked on the head. This process is called Macellare.

¶ Sometimes she was given up to other women, who dragged her about, tearing her at the same time in pieces.

and then to be consigned to the cord. The same mode of execution was, likewise, sanctioned by the Thurian code by Charondas. This legislator (we are informed by Diodorus Siculus) to check capricious innovations in his laws, ordained that whoever should propose any alteration in them, should remain in public with a rope round his neck, till the people had formally decided upon its acceptance or rejection. In the latter case, the rope was tightened, and the reformer strangled. It can scarcely be necessary to add, that few alterations were proposed. Only three instances are recorded by the Greek historian; and of these but one refers to criminal legislation. Faithful to the old principle of retaliation, which has produced so much mischief in the world, the law enacted that whoever should deprive another of his sight, should be punished by the loss of his own. A man who had already lost one of his eyes, and by a second wound was deprived of the other, represented with tears to his fellow-citizens, that the offender would not endure an equal suffering, as he would retain the use of one of his eyes, whereas he himself was become totally blind. Justice, therefore, he alleged, demanded that he should be punished by the loss of both. At the peril of his life, he proposed this alteration. His suggestion was accepted, and the change was confirmed.†

The Emperor of Germany sanctions no other mode of execution. The body is ordered to remain suspended twelve hours upon the gallows, and afterwards to be buried, not with the ordinary rites of sepulture, but apart from the other dead, without ceremony or attendance. In many cases, likewise, he ordains a species of gibbet simply ignominious.§

*Suet. Tib. lxi. Nero, in a still more detestable manner, was himself occa. sionally the perpetrator of these violences. See the story of Aulus Plautius, and his atrocious sarcasm, Suet. Neron. xxxv.

+ Diod. Sic. xii.

‡ New Code, § 20.

§ Ib. § 17.

Admitting the necessity of capital punishments, we prefer that inflicted at the gallows. Beheading itself is a sanguinary process. It is not without shuddering, that we see a bloody head falling at our feet: whereas the gallows never exhibits a public spectacle of ferocity. The death suffered upon it is not a barbarous death. And it has, farther, the melancholy advantage of preserving the shame, which is regarded as a necessary part of the punishment.*

Des Loix Penales.

Par M. De Pastoret.

BENTHAM.

General view of cases unmeet for punishment.

I.

THE general object which all laws have, or ought to The end of law have, in common, is to augment the total happiness

of the community; and, therefore, in the first place, to exclude, as far as may be, every thing that tends to subtract from that happiness: in other words, to exclude mischief.

is, to angment happiness.

II.

ment is an

evil.

But all punishment is mischief: all punishment in But punishitself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.*

the end and

several other topics, relative to punishment, dismissed to another work.

* What follows, relative to the subject of punishment, ought What concerns regularly to be preceded by a distinct chapter on the ends of punishment. But having little to say on that particular branch of the subject, which has not been said before, it seemed better, in a work which will at any rate be but too voluminous, to omit this little, reserving it for another, hereafter to be published, entituled The Theory of Punishment. To the same work I must refer the analysis of the several possible modes of punishment, a particular and minute examination of the nature of each, and of its advantages and disadvantages, and various other disquisitions, which did not seem absolutely necessary to be inserted here. A very few words, however, concerning the ends of punishment can scarcely be dispensed with.

The immediate principal end of punishment is to controul action. This action is either that of the offender or of others: E 2

that

Concise view

of the ends of punish

ment,

Therefore

ought not to

III.

It is plain, therefore, that in the following cases, be admitted. punishment ought not to be inflicted.

1. Where groundless.

2. Inefficaci

ous.

3. Unprofit. able.

1. Where it is groundless; where there is no mischief for it to prevent; the act not being mischievous upon the whole.

2. Where it must be inefficacious; where it cannot act so as to prevent the mischief.

3. Where it is unprofitable, or too expensive;

that of the offender it controuls by its influence, either on his will, in which case it is said to operate in the way of reformation; or on his physical power, in which case it is said to operate by disablement: that of others it can influence no otherwise than by its influence over their wills; in which case it is said to operate in the way of example. A kind of collateral end, which it has a natural tendency to answer, is that of affording a pleasure or satisfaction to the party injured, where there is one, and in general, to parties whose ill-will, whether on a self-regarding account, or on the account of sympathy or antipathy, has been excited by the offence. This purpose, as far as it can be answered gratis, is a beneficial one. But no punishment ought to be allotted merely to this purpose, because (setting aside its effects in the way of controul) no such pleasure is ever produced by punishment as can be equivalent to the pain. The punishment, however, which is allotted to the other purpose, ought, as far as it can be done without expense, to be accommodated to this. Satisfaction thus administered to a party injured, in the shape of a dissocial pleasure, may be styled a vindictive satisfaction or compensation: as a compensation, administered in the shape of a self-regarding profit, or stock of pleasure, may be styled a lucrative one. See B. I. tit. vi. [Compensation]. Example is the most important end of all, in proportion as the number of the persons under temptation to offend is to one.

2 See ch. x. [Motives.]

a