and scarcely requiring a detailed statement; but a little reflection upon the penal codes of any age or country, or a slight attention to the favourite arguments on criminal legislation, by showing how constantly they have been departed from, both in theory and practice, will evince the necessity of taking once for all a steady view of them, and thus fixing in our minds, as the fundamental maxim which may perpetually be appealed to, that there never can be any other legitimate objects in punishing, beside those now laid down.

The expense or cost (depense) of any punishment, is, in the language of this system, the whole evil of every kind occasioned by it, including the suffering of the delinquent,--the loss of his labour or life to the state,-the pecuniary cost of his punish ment,-in short, every thing endured, paid, or foregone, in order to obtain the double preventive which the punishment is intended to administer. The gain or profit of the punishment consists in this preventive, or in the tendency of the punishment to secure it. A punishment may be termed frugal or economical which produces the desired effect with as little suffering as possible: For, in estimating the expense of any punishment, all the other items bear so small a ratio to the grand article of the injury inflicted upon the delinquent, that they may, generally speaking, be disregarded, unless where they are made the subject of a separate discussion: So, a punishment may be termed costly or prodigal, when the same effect might have been produced by a smaller degree of suffering. Again-the real value is distinguished from the * apparent value, of the suffering; the former being the actual amount of that which is inflicted; the latter, the portion of it which is exhibited, or otherwise made known to and understood by the public. The expense of a punishment is equivalent to the real amount; the profit is in proportion to the apparent amount only; and hence we deduce these important maxims: 1. that, cæteris paribus, a punishment easily comprehended, is preferable to one of difficult apprehension: 2. that one which takes hold of the memory, is preferable to one easily forgotten:+ 3. that one which is as great or greater in apparent than in real amount, is preferable to one which is really greater than it appears to be,-the excess of real amount being in truth so much thrown away, in so far as regards the principal object, of general example.

Perhaps visible would be a better term, as apparent conveys a different idea.

The second maxim is in some degree related to the first, but not contained in it; for facility of comprehension is only one of many circumstances which regulate the facility of recollection.

The principles which ought to regulate the extent of punishments, in respect of the crimes intended to be prevented, are next laid down. The lawgiver, referring constantly to the subject of his operations--the mind of a person under temptation to commit the offence-must apportion the punishment so as to counteract the temptation. To maintain that men do not calculate when they do wrong, is quite erroneous, taken as a general position. It would be much more correct to say, that no man, however inconsiderate, takes a step of such importance as the commission of a criminal act, without some deliberation or reasoning. But, at all events, (though our author has omitted to mention it), one consideration is sufficient to justify the apportionment of punishments, even in cases where the offence flows from the most vehement passions. The knowledge of the punishment forms certain habits of restraint, by operating upon the mind in its cooler moments, when the incentives to violent excesses are at a distance; and a general or perpetual bias thus given, will, in a great majority of cases, have its effect at the critical monent of incitement. We shall, therefore, trace the Emits within which punishments should be confined, upon the supposition that the lawgiver uses them as counteracting motives to determine his subjects against yielding to their criminal propensities. This sketch is contained in the following propositions. First, the evil of the punishment must exceed the advantage arising from the crime; and, under this head, is comprehended the position, that generally speaking, the stronger the temptation to commit any crime, the more severe ought to be the punishment, subject however to exceptions in extreme cases which may easily be figured. Secondly, where the criminal act is such as to furnish clear proof of a habit or practice, the pu nishment should be in proportion, not to the gain derived from a single offence, but to the probable amount of profit reaped from a course of such conduct. Thirdly, an addition must be inade to the punishment, in order to compensate its want of certainty and proximity: Thus, yere it perfectly certain that the moment after a theft was committed, the thief would be compelled to refund the sum stolen, there is no doubt that he would abstain from the act; but the uncertainty or distance of this penalty, renders such punishment wholly inadequate to deter him. Toardy, in cases where there is a temptation to commit different crimes, a more severe punishment should be denounced against the greater crime. One of the strongest arguments against multiplying the more severe punishments, is deducible as a corollary from this proposition. Fifthly, the more pernicious any crime is, the more safely may a severe punishment be

ventured upon, for the chance of preventing it-a rule, the justness of which, however self-evident, has been almost uniformly neglected by legislators. Sixthly, the nominal amount of punishment for the same crime, must often be varied at the discretion of the judge, according to the circumstances of the delinquent, in order to preserve the same real amount of suffering.

From the consideration of the measure or quantity of punish ments, the transition is easy to that of their qualities. Those which are chiefly desireable in the nature of a punishment, are, that it should be divisible-invariable, or certain or equal-commensurable with others-analogous to the crime-exemplary-economical-remissible; that it should restrain the offender from doing harm-conduce to his reformation-yield a profit, in the ordinary sense of the word-be simple in its description-and so far popular as to shock none of the established feelings or prejudices of the community. These qualities are, for the most part, understood as soon as they are mentioned. We may observe, however, that by an invariable or certain punishment, is here meant, not one, the infliction of which certainly follows the offence, for this consideration is applicable to all descriptions of punishment indifferently, but one which, whenever and upon whomsoever inflicted, is the same, or always equal to itself. Perhaps the quality of being commensurable, is comprehended under the first head of divisibility; at least there seems no other way of computing punishments, and the word never occurs again, we observe, in the whole treatise; while it may be suspected that the quality of being exemplary, comprehends analogy and simplicity. It is evident that these qualities are not enumerated as all requisite to concur in any punishment, but only as the circumstances which ought to be kept in view when a method of punishing is to be chosen. It is almost constantly necessary to steer one's way through opposite or inconsistent qualities, by making compromises, and yielding certain advantages, in order to secure others of a higher nature, but incompatible with those which we sacrifice.

There are two of the qualities now enumerated, sufficiently important to require a separate discussion-these are Analogy and Popularity. Under the former head are explained, the various points of relation whereby the imagination may be led from the punishment to the offence, and conversely, in order that they who witness a punishment, may have their minds the more deeply impressed with the fear of it, as often as they might be tempted to commit the offence. This is a discussion requiring great delicacy in the handling, if we would avoid at certain degree of ridicule not easily separated from the exemplification of a principle in itself quite incontestable. Our au

thor treats it with his accustomed boldness and ingenuity; and we deem it fit to let him give his own remarks upon the subject generally, and the tendency of superficial thinkers to despise the details of it. I know not,' he observes at the conclusion of the chapter, that any objection has ever been made 'to the expediency of paying regard to analogy in punish'ments. As long as the general position only is maintained, every one admits it; but the moment we come to apply it, the variety of opinion is infinite; probably because the question, by its nature, is addressed to the imagination, and, in " resolving it, men consult their fancies alone. It has thus ' happened, that many persons feel an extreme repugnance 'towards some of the characteristic or analogous punish'ments proposed by Mr Bentham in his former work; and I ' have met with men of wit, who could only find in them a sub'ject of merriment. The truth is, however, that a successful 'application of the principle, depends entirely on the choice of 'the means. Every thing must undoubtedly be avoided, which 'would give to a punishment an air of levity or conceit; but still we may remark, that certain crimes are best punished by ridi'cule; or that, in some cases, as where pride has led to insult, the same process may afford also the best reparation for the injury. It is equally clear,' he adds, that whatever carries an 'air of refinement and subtilty, is carefully to be avoided. The ' act of punishing, is one of sad necessity, and performed with regret. We may admire the variety of the instruments in surgery, because we presume that they are multiplied with the 'view of producing a cure with more certainty, or less pain. But in a great multiplication of punishments, we can only perceive a spirit of minute detail, degrading to the lawgiver. With these wholesome restrictions, however, our author conceives, that an observance of some analogies in the method of punishing, may be productive of unmixed advantage; and he relates a practical instance in which the principle has been most happily applied, by one wholly unacquainted with the theory, and only skilled by experience in the knowledge of human naIt is customary in the navy, to give the men permission to go on shore for twenty-four hours at a time, and, if they exceed the allowance, to flog them. The fear of this punishment occasions numerous desertions, as may easily be supposed; and in order to prevent this evil, many captains refuse to grant permissions at all, however long their men may have been kept on board, or at sea. The officer in question, however, fell upon a better remedy, by merely changing the punishment of the lash, into one of those denominated analogical in Mr Bentham's

ture.

system. If any man exceeds the limited time of twenty-four hours, he loses his next permission to go ashore; if he exceeds forty-eight hours, he loses two turns, and so forth. The experiment had succeeded completely; the offence of remaining too long on shore, had not become more frequent since the mitigation of the punishment, and desertions had entirely ceased.

The different sources of analogy pointed out by Mr Bentham, may now be concisely adverted to. One of these consists in employing the same instrument or operation in the punishment, as the delinquent did in the crime--as burning an incendiary who had committed any aggravated act of Arson, whereby lives as well as property were sacrificed. Another method is the inflicting on the delinquent, the same injury which he offered to the innocent person. A third consists in subjecting to punishment, the part of the body with which the offender committed the crime. A fourth, in affecting the face with some disfigurement similar to disguising, where part of the offence was the use of a disguise:-And there are other analogies of a miscellaneous description, and not referable to general classes.

Thus far, we can have nothing to murmur against; but we must complain of some of the details into which our author's ingenuity and fertility has seduced him under almost all these heads. Indeed, they contain the most objectionable parts of the whole work; and it is because we profess ourselves admirers, nay, disciples of the system--and generally speaking, adopt this branch of it also, that we regret the hold which several of his examples and observations here give to its adversaries. For example, it is said that one who has poisoned another, should himself be poisoned, because the nature of the crime shows peculiar deliberation, and proves that he who commits it is capable of reflecting well at the moment on the fate that awaits him—as if into this calculation, any thing beyond the chance of detection was likely to enter, at least in the shape of deliberate reflection. But this is of comparatively little importance ;-it is where he refines further on the general principle, that we chiefly object to his inferences. If the criminal has not killed the person whose life he attempted, then, says Mr Dumont, an antidote may be administered after the poison, so as to recover the delinquent-La dose (he adds) et le temps seroient fixés par le juge sur le rapport des experts.' So in punishing a person for causing an inundation, in countries intersected by canals, it is said, that if the principles of the code exclude capital punishments, the delinquent may be drowned and then restored again to life. Again, for acts of counterfeiting, as forgery, &c. a part of the punishment may be, we are told, to expose the offender with his hand