Thus

circuit, is a striking illustration. My Lord Loughborough awarded a punishment in reference only to this single offence; while Mr. Justice Gould awarded his judgment in reference to all crimes of the like nature. these two judges, both of them conscientious, were left to apply so different a remedy, because the ends they proposed were so totally unlike.* If the principles here laid down are correct, this arbitrary authority will be reduced to narrower limits. A definite end will call for definite means; and punishment will not be inflicted for the same crime in the revolting disproportion, which it may be at present.

Let it be recollected also, that, though the direct object we propose to ourselves is defence and protection, this is not the only advantage we obtain. The pain that is the consequence, whether it be afflictive or restrictive, operates upon the mind of the delinquent, and of other offenders, to prevent that particular species of crime, and to deter mankind from crime generally. For though it is of the utmost importance in the practice of virtue, that we should have a chief end,

* See Note (K) Appendix.

yet we are not precluded from other ends subservient to it; but, on the contrary, those act most consistently with their nature, whose objects, both principal and subordinate, correspond with, and support, each other; and there can be no doubt, if we are directed by enlightened views, that the secondary objects are more completely attained by this co-operation.

Thus, supposing the end to be aimed at in judicial punishments were defence, this is not the only good which would arise. The prevention of crime, the reformation of the offender, are consequences as certainly obtained by this means, as if exemplary punishment and reformation were the objects sought after. The effect on the mind of the offender will unquestionably be more favourable, if we lean to the side of mercy and beneficence, rather than of cruelty. Indeed, such a course of conduct keeps down that turbulent opposition of the offender, which arises in his mind when the punishment is too severe, and excites in him sorrow and remorse, which are the natural consequences of merciful treatment.

It is a truth which cannot too often be in

sisted on, that the business of politicians is to attend to those direct ends, which are plainly within their management; and to leave the remote ends to be brought about by the operations of natural law. They will then, like the prudent physician, follow the course of nature, and not, like the empiric, attempt to subdue diseases by panaceas or specifics. But it is the less necessary to enlarge upon this very important point, as I should have to repeat what I have already said in considering of the ends, which individuals ought to propose to themselves in their actions.*

One more observation, and I shall conclude this chapter. It must be admitted that the view which I have taken of the criminal law, supposes criminals not to have lost all sense of right and wrong. Nor is it possible to conceive such a change to have taken place, unless they were completely altered in their nature. The very preference they give is a proof that they have not totally lost the characteristics of human beings. The case is not that they are insensible to the distinctions between virtue and vice, but that,

* Vid. p. 101.

A A

having had the power of choosing, they have approved of the latter more than of the former. If their natures were changed, as some persons would treat them, I know not how we could legislate for them with any chance of success. At present, we are enabled to act upon the principle, that like causes produce like effects; but should the nature of delinquents be so altered, as to take them out of the common course of the human con+ stitution, we should be left entirely at sea, and could never legislate upon any settled principles.

This is evidently not true of the majority of offenders, and more especially of those against whom it is most difficult to guard; and as to the extreme cases, which appear like exceptions, it would be unwise to frame a system accommodated to them, and thus unfit it for the usual constitution of mankind.

CHAPTER V.

Of the analogy between human and divine law the Mosaic and Patriarchal dispensations—of judicial discretion, and the impossibility of making law to supply the place of virtue.

IF the previous discussion was necessary to lay open the sources to which we must apply for information on this most critical subject, we shall find it expedient, as we proceed, to advert to other obstacles in the way, which must be removed, before we can obtain free access to the knowledge we are seeking.

One of the chief of these is the close analogy that has been attempted to be preserved between the penal inflictions of human tribunals, and those of the Deity injoined against sin. It is this idea of affinity that has swept into the same net, to employ Paley's figure, such a multitude of crimes of different dyes; and has visited with the same pu