saying to the public-Trouble not yourselves about the intrinsic nature of human actions. Look at the powers that be-if they cut a man's head off, conclude that man is a great villain. There is such a contempt for the species in this, such a pretension to despotism in all things, even in morality, that without risking over much, one might judge of the spirit of the whole code by the first article."1

As an improvement on the law of Treason, the Commissioners recommend the limitation of that crime to cases of direct attack on the person or authority of the Sovereign, as head of the state. They propose to remove from the present list of Treasons, all offences which do not come within this category, and to insert them under the titles of Felony or Misdemeanor, with appropriate punishments. Those who know the length to which the doctrine of constructive Treason had of old been carried; how it fastened indifferently on the importers of bad coin, and the demolishers of meeting-houses, will admit this to be a most desirable change.

We pass on to a subject of paramount importance, on which the Commissioners have barely indicated their general views. "We propose to reduce all punishments in respect of indictable offences to those specified in the following or some other similar scale, by which the classes shall be greatly reduced in number, so as not, at the furthest, to exceed twenty. "1. Death on conviction of treason, or conviction of

felony.

"2. Transportation for life, or some less term of years, or imprisonment not exceeding five years.

"3. Transportation for fifteen years, or some less term, or imprisonment for any term not exceeding four years.

"4. Transportation for the term of ten years, or imprisonment for any term not exceeding three years. "5. Imprisonment for any term not exceeding five years. "6. Imprisonment for any term not exceeding four years. "7. Imprisonment for any term not exceeding three years.

"8. Imprisonment for any term not exceeding two years. "9. Imprisonment for any term not exceeding one year.

1 Traité de Droit Pénal, i. 54.

"10. Fine at discretion, either simply, or in addition to some other punishment.

"11. Fine not exceeding five hundred pounds, either

simply, or in addition to some other punishment. "12. Fine not exceeding two hundred pounds, either

simply, or in addition to some other punishment. "13. Fine not exceeding one hundred pounds, either simply, or in addition to some other punishment. "14. Fine not exceeding fifty pounds, either simply, or in addition to some other punishment.

"15. Fine not exceeding twenty pounds, either simply, or in addition to some other punishment."

"In suggesting this scale, in which the maximum of punishment only is mentioned in each class, we are desirous that it should be regarded merely as a specimen of the form into which we think it will be desirable to reduce the various penalties assigned to crime. When the definitions of crimes are completed, it will be necessary to consider the classes of punishments with the most scrupulous care, in order to ensure the consistency of the whole system; but this must, for obvious reasons, be one of the last operations to be performed.

The introduction of fourteen degrees of punishment short of death, is strangely at variance with the Second Report of the Commissioners, which recommended three degrees only. Of those, too, they proposed to fix by law the minimum as well as maximum, but we do not clearly collect whether this is also intended with the present augmented number. If it is, the discretion of a judge will be small indeed under the new system, to say nothing of the bad principle involved in the introduction of minima at all; but we confidently hope that it is not.

Another deviation from the previous Report, the reduction of the proposed maximum of imprisonment from a term of ten to five years, has our entire approval. It is true that many of the foreign codes recognize the expediency of incarceration even life-long, but apart from the consideration, that with most other countries no punishment of transportation is practicable,1 the value set in England on personal liberty is so

1 Professor Hans, the celebrated commentator on the Belgian code, commences a solemn dissertation on the merits of transportation as a punishment, with the

much greater, that we are convinced even a ten years' impri sonment would be regarded by the public at large, as not less cruel or terrible than death itself.

The Commissioners doubtless intend, although they are silent on the point, to retain the two aggravations of imprisonment, hard labour and solitary confinement. The utility of the former is beyond all question,-of the latter, when employed with discretion, scarcely so questionable as to be worth dispute. But it may be doubted, whether the duration of it has been sufficiently abridged by the late statutes, whether too much discretion is not still left in the hands of an over severe judge. It may be remembered, that, previously to the Victoria acts, the Court possessed an authority, unlimited as to time, to direct solitary confinement for some offences, whilst for others, and those often very serious,—such as offences under the 9 Geo. IV. c. 31, the Court had no authority of the kind. But by the Statutes passed in the first year of her present majesty's reign, in cases of forgery, robbery, and offences against the person, burglary, stealing in dwelling-houses and from the person, piracy, destroying buildings and ships, and of certain offences before punishable with death or transportation for life, the application of solitary confinement was restricted to one month at any one time, or three months in any one year; and by the more general provision of c. 90, s. 5, the same restriction was extended to all such offences as were before liable to this punishment for an unlimited period. This still left some felonies, and misdemeanors generally, exempt altogether. We should have no objection to see the power of appending solitary confinement to every sentence of imprisonment, entrusted to the Courts, but we think the power they at present exercise in some instances too great. Thus, it is no unfrequent practice of a learned judge, of acknowledged ability in the discharge of his criminal functions, to alternate three months of solitary confinement in imprisonments of only six months' duration. This seems contrary to the spirit, at least, of the clause

remark, that as to Belgium, "la question est tranchée, nous n'avons pas de colonies."-Obs. sur le Projet de Code Pénal Belge, vol. 1, p. 89. This reminds one of the mayor's twelve reasons for not firing a salute. "In the first place, we have

no cannon."

in the Victoria Acts, allowing only three months in any one year, and the proportion there indicated of one in four for the whole period of imprisonment, is perhaps one which to exceed would be dangerous rigour. So terrible an infliction is this punishment considered by foreign writers, that Professor Hans whilst approving it, recommends that it shall be introduced into the sentence of great criminals, in the proportion of one month for the first year, and fifteen days for the following years,1 during their term of confinement.

We hope to see the imposition of Hard Labour also legalised as an aggravation of all sentences of imprisonment at the discretion of the Court. At present justice is frequently baffled through the impotence of our tribunals in this respect. We may instance the case of common assaults, however brutal and violent, where the offender, if, as mostly happens, a person of low rank and dissolute habits, thinks it a positive boon to be consigned to a comfortable abode, where he finds food and lodging at least as good as he has been used to, without any of the toil of earning them.

The Report, as before stated, recommends the abolition of all additions to the simple punishment of death. Consistently with this advice, we are at a loss to understand what is meant by the proposal to change the offence of slaying a chancellor or judge from treason to felony, as aggravated murder. Aggravated murder surely implies a punishment greater than that of ordinary murder; if not, it is an expression totally devoid of meaning, or at least of effect. The French code in cases of aggravated murder still retains the horrid punishment of mutilation; the Bavarian superadds to the usual solemnities of execution, half an hour's previous exposure in the pillory. Few will be found in these days to defend the enactment of the former code, but it is not perhaps so clear whether that of the latter is to be condemned. any rate, if the expression of aggravated murder deserves to be imported into our criminal law, it ought to be sanctioned by some exemplary addition to the penalty of death, not involving further bodily suffering to the criminal.

3

1 Obs. sur le Projet de Code Pénal Belge, vol. i. p. 159. 2 Art. 299.

3 Arts. 5, 6.

At

On the subject of transportation, the Commissioners briefly observe:

"It will be seen that we have placed transportation among the secondary punishments in the above scale. In so doing, we merely deal with it as a punishment provided by the existing law, without intending to express any opinion as to its general efficacy as a punishment, or as to the propriety of its continuance. This subject is at present under the consideration of the legislature, and the recommendation contained in the recent Report of a Committee of the House of Commons, may possibly lead to some extensive modifications of the practice. On this ground alone it would be impolitic to recommend a final scheme of punishments, founded upon the present state of the law, as the abolition of transportation would necessarily occasion a total change in the whole system of secondary punishments."

On the subject of this punishment, we have little to add to the text. The many interesting topics involved in the consideration of it have been fully discussed in former numbers. But as far as we can perceive, the difficulties attending this question remain unremoved and irremoveable; the evils of the present system are admitted universally; but the ingenuity of those who most condemn it, fails to suggest any adequate or effectual substitute. One objection, however, to this punishment, that it is not correctional, must, we fear, lose weight as we progress towards a right understanding of human nature and penal economy. With a doubtful reservation for the case of juvenile offenders, it is our sad conclusion that the reformation of the criminal is too generally hopeless to justify its being adopted as a material element in the problem of the best possible arrangement of punishments. It is remarkable, that, whilst in England and America the benevolent theory of correctional methods is still entertained by many of those whose opinions are most entitled to respect, it seems generally abandoned by the jurists of the Continent, where the subject of punishments in general has been more thoroughly studied and analysed. Even Rossi, with all his sanguine benevolence, on this point seems almost to despair.1

4 Traité de Droit Pénal, l. iii. c. 3.