Front Page Titles (by Subject) CHAPTER III.: criminal laws—processes and punishments. - Travels in the North of Germany, vol. 2
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CHAPTER III.: criminal laws—processes and punishments. - Thomas Hodgskin, Travels in the North of Germany, vol. 2 
Travels in the North of Germany, describing the Present State of the Social and Political Institutions, the Agriculture, Manufactures, Commerce, Education, Arts and Manners in that Country, particularly in the Kingdom of Hannover (Edinburgh: Archibald Constable, 1820). Vol. 2
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criminal laws—processes and punishments.
Criminal code of Hannover.—Remarks on it.—Unfitness of the code.—Is not followed in decisions.—What the judges do follow.—Torture abolished.—When last inflicted.—Criminal process secret.—Is regulated by the convenience of the judge.—Great length of processes.—Fail to instruct the people.—Tribunals formerly public.—Number of persons punished in Hannover in a year.—Proportion of females.—Proportion of thefts.—Cruelty of punishments.—Are more humane than formerly.—Few persons punished in Hannover for coining or forgery.—Punishments of the police.—Comparative statement of the number of persons punished in Great Britain and Hannover.
The only code of criminal laws which exists in Hannover,—if it deserve the name of a code,—is the celebrated Carolina, or Hals, or Peinliche Gerichts Ordnung of the Emperor Charles V. This was formerly the penal code for all Germany. Austria, Prussia, and Bavaria,∗ have now adopted new codes. As it has long been the chief and only criminal code of the country, it must have had a considerable influence on the manners of the people. It is eminently worthy of remark, however, because it shews clearly how perfectly unfit men formerly were to legislate for the present time. And we may infer from this how perfectly unfit the laws, which the present race of legislators are so eager to make, will be for posterity. There was no monarch of his time who was superior in talents to Charles V. and in making this code he was aided by all the learning and wisdom which Germany then possessed.
In this code crimes are not classified, they are set down as chance has directed. Enchantment is ordered to be punished as severely as murder. Minor offences are punished by cutting out the tongue, or cutting off the ears or the fingers, or by some other cruelties. But its chief abominable principle is, that it recommends and recognizes no other means for the discovery of truth but the infliction of the torture. It says, at page 17, as a general rule, “In cases where it is certain crimes have been committed, if the accused deny his guilt, he shall be compelled to confess the truth by torture, in order that for all well-known crimes the final judgment may be given, and punishment may be executed with the least delay and expence possible.”
The torture was not only used when it was certain a crime had been committed, but also when it was only suspected. At p. 68, this code says, for one of its particular rules, “When a female who, on such grounds,—as having been seen with an enlarged body, and having secretly delivered herself,—shall be suspected of child-murder, and she shall deny it, she shall be brought to confession by torture, in order that she may be finally judged to death.” We here see distinctly that connection which former legislators supposed to exist between crime and punishment. The former had been committed, and they thought, without any reference to the good of society, it was necessary to inflict the latter. People were to be tortured that their confessions might justify the judges in inflicting punishment. There seems to have been no principle whatever followed, more than a vague notion of some conformity between guilt and burning to death.
The death which was to be inflicted for child-murder was drowning, and this was a step towards improvement, for a former custom is mentioned of flaying and burying the criminal alive. That these legislators might not, however, be too humane, it is stated in the same article, that if child-murder is frequent, burying alive and flaying may be used; and, further, that, “with the advice of men knowing in the law, the flesh may be torn from the criminal with burning pincers.” Such is the humanity of this law.
We shall, however, be more thoroughly sensible how unfit these men were to legislate, if we attend for one moment to the nature of that crime which they employed torture to discover, and which they punished with death. At present it is no longer doubted, that society is rather injured than benefited by a number of children being thrown upon it. So far, therefore, as the increase of the society is concerned, it is not injured by infanticide. Though an infant be born alive, a few moments of misery can give it no connection with the world; it can have no knowledge of enjoyment: and if its being be extinguished before it have well existed, it may be doubted if it suffer any injury. How common is the exclamation, that the poor child was well rid of a troublesome world. Neither the child, therefore, nor the society, can be said to suffer by the crime of the mother. But the child is in fact a part of the mother, and might be as great a source of enjoyment to her as the faculty of vision. To deprive herself of a mother’s love, and her child of life, is synonymous with doing herself a serious injury. The state of misery to which a woman in European society must be reduced before she can bring herself to do so foul a deed, gives her a claim to our pity; and it is most cruel to add to her misery, by torturing her to confess what she had done herself so much injury to conceal. Infanticide is a terrible crime, inasmuch as it is a terrible injury to the unhappy mother who commits it; but while it is concealed, it can do the society no injury whatever.
By the very terms of the law in question—by its directing an examination by midwives, and to force a confession by torture, it supposes the crime not to be known, but only suspected. Being unknown, it could have no effect as an example; and the more perfectly it was concealed, the more exclusively did the whole evil belonging to it fall on the unhappy mother. By lawgivers endeavouring to discover such a crime, and by making it known, they spread that horror which men so naturally feel on such an occasion, through a greater number of bosoms, and they inform all those from whom it was most desirable such information should be for ever concealed, that it is possible to commit such a crime, and yet escape punishment. An idea that they never could have formed, but for the trouble the lawmakers took to discover and inflict punishment on the crime. In this case it is the law itself, it is the meddling of legislators, which in reality causes all the evil which may fall on the society from the conduct of the female. And if the evil which any action causes to the society be the measure of the guilt of that action, legislators are, in such cases as this, far more guilty than the unhappy mothers. From the terms of this law it seems as if legislators delighted in discovering crimes; and they ordered the most horrible torments, to produce a confession that might in their opinions justify the infliction of death.
It must be clear, from the specimens which have been given of this code, and from this one case being so contrary to our present feelings and our modes of thinking, that the legislators of that period were perfectly unfit to dictate the laws which ought at present to govern the world. And surely such an example should teach us, that many of the boasted codes of the present time will appear equally cruel and absurd to posterity. With such specimens of ignorance and failure before us, and how many might be added? it is most strange that we should yet be taught, that legislators are the greatest of human beings, and that to obey and reverence them is one of the greatest virtues.
The Carolina is not only very unsuitable to the present time, but it is also very imperfect; in many cases, therefore, it is not followed; and many others occur for which it prescribes no punishment. In all these cases the judges follow their own good sense. They moderate the punishments which the code orders; they punish many actions not mentioned by it; and in all their judgments they appear to act more according to the present state of knowledge in the society, than according to any fixed rules. One advantage which has resulted from this is, that infanticide, which the code orders to be so cruelly punished, is punished with imprisonment for a few years. When the crime is only suspected, the torture is no longer employed to force a confession, and the pain of concealing delivery is only further enhanced by confinement for some months. On this point our neighbours are superior in humanity to us. They regard the anguish of the mother as a severe punishment, and no longer imbrue their hands in the blood of the unhappy and guilty wretch who already suffers the penalty which nature inflicts on her crime.
What the judges are taught while they study at the university, and the books which have been written by celebrated professors on criminal jurisprudence, serve to make the judgments of different judges alike; and all of them are therefore guided by some common rules. The professors who lecture at the universities on criminal jurisprudence, explain the present state of knowledge on this subject. They give their own opinions, and the opinions which they have collected from other writers; and these, with the sentences previously pronounced, form that body of knowledge on which the judges act when they condemn any man to punishment. This is, in fact, a sort of code; but as it has no other authority than that of reason, it is always modified by the private opinions of the professors and of the judges. Hence it is gradually and constantly amended as the society improves in knowledge. The principal work which is at present used as a guide is, “The Principles of Criminal Jurisprudence, by Professor Meister of Göttingen.” There is one evil, however, belonging to this practice, which is perfectly evident. The judges having it in their power to institute investigations not only into acknowledged crimes, but into such actions as they think criminal; having this discretionary power to punish; not being exposed to public censure; and anxious, like all such persons, to prove the value and utility of their ministry, they punish a great number of actions which are regarded in other countries as out of the common jurisdiction of tribunals. Thus, for example, “a midwife neglecting her duties,” “quarrelling with a land-dragoon,” “insolence,” muthwilligkeit, “drunkenness,” “not profiting by example,” are all crimes pregnant with mischief, but utterly beyond the proper jurisdiction of any tribunal. Much, undoubtedly, of this interference is caused by the judges seeing no other power but their own to check and restrain the conduct of men. The ill health of the drunkard, the loss of practice by the negligent midwife, the constant enmity and quarrels occasioned by insolence, are nothing visible to the judge; and he must see something, or he will not believe any punishment is felt.
From the specimen of improvement which has been mentioned above, however, it seems on the whole to be good that laws should in their execution be thus left to the magistrates, and should thus be constantly modified by the opinions of the day. Possibly these opinions alone would be a better guide than any code which should remain unalterable. It is no bad thing that the writings of clever men are allowed to have all that influence which in Germany is allowed to the instructions of the professors; and this system would be worthy of all praise, provided the trials were all carried on in public, and the judges were more subjected to public opinion. But almost the only point in which civil and criminal processes agree is, that they are both secret.
A great improvement has recently been made in the criminal process of Hannover, by abolishing the torture. The French abolished it, but it was again introduced on the return of the country under the present government. It has since then been several times practised. In the town of Hannover, a man was tortured so late as the month of March 1818. His crime was stealing a cow, and the judges were anxious to make him confess. In 1817, two other persons were tortured in the same place; and in 1818, three other men were tortured in various parts of the kingdom. It was in the month of December 1818 that torture was finally abolished.
The first-mentioned instance of torture excited a great deal of attention in Germany; and there can be no doubt that the reprobation with which it was treated in many public journals was the chief cause why it was afterwards abolished. It may be reckoned as one benefit which has been gained for humanity by men devoting their attention to political subjects. If no others were to follow, this will remain a lasting memorial of the improvement of the Germans in political knowledge. It may be quoted also as proof of the falsity of that perhaps general opinion, that mankind are depraved. The voice of the multitude is generally on the side of humanity.
At the same time that the torture was abolished, some alterations were also said to have been made in the mode of conducting criminal processes; but what they precisely were is not known. I shall therefore here endeavour to describe the former criminal process, and the reader will be enabled to form some estimate of the effect it has had on the character of the people.
It has before been mentioned what courts have a criminal jurisdiction. One of the first regulations concerning criminal processes is, that the examinations shall never be carried on by one person alone. If there are not two judges belonging to the court, or if from any circumstances one only is able to attend, he must take with him a notary, or an auditor from some other court, or some qualified person, to attend the examination. In cities, and under the chanceries, where the magistracy is numerous, the examining judge must not only be attended by an actuary, but also by two persons called Schoffen or Schoppen. At present these persons are some of the officers of justice, but originally they were impartial persons taken to witness that all things were conducted properly. And prior to the introduction of the Roman law, and of secret trials, they seem to have had a vote in the judgment. This is a point in which the forms for the administration of justice have very much deteriorated. The whole of the examination, the questions put, and the answers given, the names and characters of the persons present, and every incident which during the examination may help to prove either the guilt or innocence of the prisoner, must be written by the actuary in a clear legible hand. Finally, it is ordered, that the person who conducts the examination shall never of his own authority order the torture, or punishment of any kind, to be inflicted. The written examination must first be submitted to other magistrates, who alone can order either punishment or torture. There is reason, however, to believe this latter rule was not always attended to, and that the whip was frequently employed by the examinators of the minor tribunals, as a convenient mode to make the accused give consistent answers.
In case any person is accused by another of having committed a particular crime, the judge examines the life and general conduct of both parties, and the probable motives of the accuser; and he must have reason to believe that the accusation is just, before he subjects the accused to a particular examination. In cases, however, of public and notorious crimes, the judges in whose district they may have been committed are not to wait till some person is accused, but they are immediately to proceed in what is called a general inquisition. They examine all the circumstances, visit the spot where the crime was committed, inspect the body, if a person has been murdered, open their ears to any reports against the probable criminal; and when they are satisfied on good grounds that any person is guilty, they subject that person to what is called a special inquisition.
The only protection which the community has in this case against the power of the magistrates is, that they are warned to be cautious in their proceedings, and that if they do any wrong, they may be punished by a superior court. One instance of a judge being punished for improper official conduct is known. But when the committing is also the examining judge, he has such a power to give a colour of probability to the accusation, he can make such a multitude of excuses in his zeal, and the esprit d’ corps is so strong in the profession, that the possibility of punishing him if he do wrong is so remote, that it can afford to the ignorant and poorer classes of the community no protection whatever against his power. It is at all times of great importance to any community to have a protection against its own servants; but it must now be doubly important to the Germans, when they are beginning to struggle for political freedom, and the judges are the dependant servants of the government. To render the judicial independent of the executive power, to provide some security against the power of the judges, and to have open courts, should be some of the first reforms demanded by the patriots of Germany.
All the circumstances which justify special inquisition justify the arrest of the suspected person. It is ordered that all the tribunals shall be provided with two prisons—one for security, another for punishment. It has been expressly forbidden that any one hardship whatever shall be inflicted on the prisoner, which is not necessary to secure him. If the suspected person be loaded with irons, be shut up in a damp unwholesome dungeon, as he is in England, if he have not “full light and full liberty to read, and pray, and sing,” it must be in defiance of very precise orders which have been given on the subject. Where circumstances allow of kindness, prisoners intended for trial are not, in fact, subjected to any hardships not necessary for their security.
The liberty of the subject is also protected by the law allowing bail to be put in for the appearance of the person accused, when the crime is not liable to be punished by death, or imprisonment for life. He may either be bailed by people being bound for him, or by his delivering up such a quantity of property as may be thought necessary to ensure his attendance. Even in cases which involve the severest punishment, the Chanceries have the power, if they think fit, of admitting the accused person to bail. This law is not a dead letter, it is in daily use, though its operation does not extend to persons whom the government might think fit to punish. Allowing bail, however, also depends very much on the will of the magistrate. Though the law prescribes it, he allows it or not as he thinks fit. This custom of bailing is, I believe, confined at present to the north of Germany.
So soon as possible after a person is apprehended on suspicion, the judge is to examine him, to warn him to speak the truth, to threaten him with the torture or horse-whipping, and to ask him if he will confess to have committed the crime of which he is accused. On the first examination nothing further is done. If the accused can bring forward proof of an alibi, or that the accusation is founded in malice, he is allowed to do it in writing, before the expiration of fourteen days. After this period the judges consult their own convenience as to proceeding in the examination. If any circumstances whatever induce them either to delay or to hurry the trial, it is perfectly at their option to choose the time for its further prosecution. The superior courts may be applied to, and may sometimes be prevailed on to order the inferior courts to proceed or stop a trial; but with this exception, the prisoner is entirely at the mercy of his judge.
Prior to further examination, the judge writes out all the questions he means to ask the prisoner; to him, however, they are not communicated, till the judge requires him without his advocate being present to answer them. The apparent aim of most of the questions is, to induce the prisoner to confess his guilt.
The judge has the power of examining such witnesses as he pleases; and before he examines them, the questions he means to ask them are communicated to the prisoner, who has the privilege of suggesting to the judge those questions he may wish asked of the witness. Witnesses may be examined in presence of the accused; and when, from any circumstances, they cannot be brought to the place where he is confined, he may empower some person to attend their examination in his name. When he does not do this, the judge does it for him. No advocate employed by the prisoner is allowed to suggest to the judge what questions to ask; nor does any other cross-examination of witnesses take place at this time, other than what the judge thinks necessary for the discovery of the truth. If the witnesses have deposed to something denied by the accused, the judge may confront them, and the accused may then remark on all the absurdities, falsities, and other imperfections which he may discover in the testimony of the witnesses. This confrontation, however, is not a necessary duty towards the prisoner, it is a part left to the discretion of the judge. Of course, the judge has equally the power of confronting the witnesses and accomplices one with another.
At this stage, the justice chanceries, or, if the examination is conducted by some minor court, that university faculty or superior court to which the acts of the examination have been sent, may order, if it think it right, the torture to be inflicted. This order is not to be immediately made known to the accused, but he is first to be more strongly exhorted to tell the truth. If he persist in denying his guilt, he is to be threatened; but one or two days are to be allowed him to deliberate. He may now affirm, on oath, that he believes he can yet produce something more in his defence, for which a few days may be allowed him. His further defence is judged of by the court to which the acts were before sent, and if it confirms its former judgment, the torture is then to be applied.
The judges collect in the court; the prisoner is again questioned, and his answers registered. If he still denies, he is introduced into the torture-chamber. The executioner is informed to what degree the torture is to be carried. The eyes of the prisoner are bound, and this degree is to be applied for half an hour, or more than an hour, unless the prisoner in the mean time confesses. The instruments employed are various, but the principal one is the whip, while the man is fastened to the wall with iron cramps, and a judge and a surgeon direct the pain to be augmented or diminished, in proportion as the criminal is obstinate, as he relaxes, or suffers. In a pamphlet which was published anonymously, but which was evidently written by some person filling a subordinate situation in the courts, this is called a wholesome method for the discovery of truth, and the author appeared extremely indignant that it was then no longer allowed to be practised by the minor tribunals. He compares it to opium, which may be sometimes misemployed, but which is, in the hands of a skilful practitioner, of sovereign usefulness. A solution of the celebrated ironical proposition of the Marquis Beccaria, “The force of the muscles, and the sensibility of the nerves being given, it is required to find the degree of pain necessary to make an accused person confess himself guilty of a given crime,” appears to have been sometimes actually aimed at. It is commanded, “that when the tortured man confesses his guilt, the degree of tortore at which he does this shall be accurately marked,” in order, possibly, to know at what degree to begin with the next similarly circumstanced criminal.
The accused person is allowed, in all cases that involve a greater degree of punishment than confinement for two years, to select one of the advocates received by the court, to defend him. If he be too poor to pay a defender, the court appoints one, and the advocates fulfil this duty in turns. The court orders such a reward as it thinks the advocate employed merits. The advocate is allowed to see all the acts of the process, and, if necessary, to take copies of them. He is allowed to speak to the person he defends in presence of one of the judges. Should the prisoner wish to see the acts after an order has been given to inflict torture, he is only to be allowed to see them when the judge is fully convinced it is not intended to use them as a means of bringing a suit against the person denouncing the accused, but that they are only sought by the prisoner as a means to defend himself better. After this the final judgment is formally announced to the criminal, who may still demand further time for his defence, and this, too, is at the option of his judges. In the whole of the proceeding, every thing is left to the examining judges, who seek for evidence, examine so far as they please, and so often as they please. It is something in which no man but the sufferers and the judges has any concern.
There are some conspicuous faults in this manner of trial. First, there is no time fixed during which the process is to be proceeded in. All this is left entirely to the discretion of the judges, and the consequence is, that criminal processes last in doubtful and difficult cases for some years. There are instances in which the value of the property stolen would have been more than compensated by the labour of the accused skilfully directed during the time he was shut up for trial. Criminal processes for stealing things of no great value last sometimes more than two years. Throughout Germany, even in those countries in which new codes of laws have been introduced, the forms of procedure are nearly the same, and in 1817, a trial was concluded at Vienna that had lasted twenty-six months, and had cost the public 90,000 florins, or, according to the value of an Austrian paper florin at that period, about L. 2600 Sterling. And this was the trial of a murderer who expiated many crimes at the gallows. It was not enough that he was convicted of one, but his whole life was tried, and he was questioned as to every year of his existence. In no case, however complete may be the proof, can the process in any degree be ever assimilated to a summary, or, as it has been better named, a rational process. Delay is so great, that the criminal, when he is to be punished, may forget, and certainly the man injured must long have forgotten, what was the crime committed. One of the good effects attributed to punishments must by this mode be absolutely lost. They follow the offences at so great a distance of time, that no man can connect one with the other, and they can never operate as an example.
The trial is in a manner secret. The judges, the advocate, and the criminal, are the only public. It is for the interest of society that men are tried and condemned. Trials, as well as punishments, are instructive to the world. They are intended not only to prove the guilt to the judges, but to demonstrate to mankind the justice of the sentence, which can never be known unless all the proceedings are known. Between the accusation and the punishment, how many proofs may be imagined of innocence? Till these are known, punishments decreed by secret tribunals can never deter from crimes, because no man can be convinced that they are the consequences of guilt. They are the consequences of something unseen and unknown, of the opinions, prejudices, and passions of the judges; they may, and they do, reduce other men to a dependance on the administrators of the law, but they bring home to no man a conviction of the evil of crime, and can, therefore, correct no man’s immorality.
What a different idea do men form of justice, as its proceedings are open or secret. In the former case, when it is at all administered as it ought to be, its punishments may be distinctly traced to be the consequences of guilt. In the latter, it is for the mass of society a dreadful power that strikes like lightning, and like the tempest. Their causes are unknown, and they are only seen and felt by the fear, and pain, and destruction they occasion. When justice is publicly administered, it is known to be an establishment of men which men may inquire into and improve. When it is privately administered, men regard it as something above them, and they submit to it with all its accumulated horrors, as they would to a superior being, whom it is impossible to resist or control. Its rules are even above its ministers, and thus the absurd institutions of ignorant men are made fetters to their better informed posterity. It is said in favour of secret proceedings, that they can reach man in his most private doings, and only stigmatize him with punishment when he is really found to be guilty. That they are like the powers of conscience, always and only felt when wrong has been committed. But, to prove their efficacy as a means of preventing crimes, they should be equally directed, like the silent penalties of nature, against all the actions which produce evil to man. The heartless inactivity which slumbers through life, the turbulent restlessness which permits no peace, the makers of bad laws, so well as law-breakers, should all have proportionate penalties inflicted on them by secret tribunals. Till they extend their power to every evil caused by man to which man is subject, and this is impossible, they can only be regarded as an inefficient means of preventing crimes. Men also console themselves when they are punished by asserting they do not deserve punishment. Secrecy of trial must always aid this, because it affords the criminal a chance of being believed.
The proceedings of the tribunals were public during the usurpation of the French, they are now public in a part of Germany, their publicity has been demanded in some of the writings of the day, and as they were public at a period long past, that they should now again be so may not only be claimed as a formerly existing right, but as a great probable benefit.
While it is cheerfully admitted that the spirit of criminal justice is improved, that the cruelty of punishments is fast diminishing, that probably none of the judges deliberately commit injustice, it cannot be denied that, in form, the tribunals are much worse than formerly. They have been entirely regulated by jurisconsults, whose thoughts have in no country ever gone beyond the consideration of their own sect, and whose present influence is one of the worst evils under which Germany, and perhaps Europe and America, suffer. But Germany appears particularly cursed by them, because they have there introduced the laws and usages of a foreign and enslaved people.
The following passage will both shew the former state of the tribunals of Hannover, and that the opinion here enunciated of jurisconsults is not singular. “How honourable and simple was everything before this new class of men, learned doctors of the law, was known. The prince held a court in the open air, attended by his nobility, some few times in the year, either in the Baumgarten at Hannover, by Lauenrode, or on the Leineberge by Göttingen. He gave justice to those who came before him, and many came without support, and without any person to speak for them; because they who had been injured could best explain in what manner, and why they believed they had been injured. So soon as the news were spread that the prince and his nobility were again assembled, people came quickly together from all the neighbouring country. As the delay of his coming had made many people forget why they would complain, and as the manner of proceeding in each dispute terminated it quickly, in a few days quietness was restored to the whole district. In disputes between nobles, or when nobles, clergymen, or the officers of the prince, were accused, justice was seldom delayed to these periodical times, but the accuser sought the prince, followed him far and near, and always found a hearing when elderly experienced nobles were with him, whom he could use as witnesses or jurymen, Schoppen, to assist him in pronouncing judgment.”
“All the relations, however, that sprang out of the whole circumstances of the society, were without foresight, unsparingly destroyed, as the doctors of the Roman law gathered about the courts. They not only introduced new principles of decision, but gave to the whole of the proceedings a finer form, which, in a short time, necessarily made the whole of the business their property.”∗ Laws in Germany are still called the property of a sect of men, Ein casten Güt. At a former period, therefore, courts of justice were held in the open air, and justice was not then a mystery known only to a few adepts. It was rude, perhaps, but it was something which every man knew, which was then equal to the wants and knowledge of the society, and which has only been kept below the level of our wants and knowledge, by having been monopolized to trade with by the learned doctors of the law.
In the whole of the kingdom of Hannover, between the 1st of May 1817, and the 1st of May 1818, there were punished by the different tribunals, for the crimes of
Of these 525 persons 106 were females, consequently rather more than one-fifth only of the persons punished belong to the other sex. Similar, or rather greater, proportions in favour of women are found in other countries, and if punishments be at all an index to crimes, this proves the females to be much more virtuous than the males.
Here also, as in all other European countries, notwithstanding more severe laws have been in constant existence for the punishment of theft than for any other crime, the greater part of the punishments are inflicted for some violations of that right of property which all men allow to be, as it at present exists, the mere creation of social institutions. Without setting myself to find out whether any better system might be introduced or not, it is clear that the greater part of the crimes now punished by the laws of Europe are occasioned by the social institutions of Europe. Whether other and greater crimes would not exist without these institutions, is not at present a matter of inquiry; but it is a certain fact, that somewhat more than four-fifths of all the crimes punished by the laws of Europe are violations of the artificial right of property. In vindication of nature and of mankind from the aspersion of legislators, it must always be remembered, that the great part of the existing crimes of men are not crimes of the heart, or of natural passions, but of ignorance, and of the systems of these legislators themselves.
Among the thefts are a very few burglaries; they are mostly stealing in houses and gardens, or stealing of horses, sheep, or linen. Some persons have been punished for stealing game. Many of them have been repeatedly punished. In Hannover, therefore, as in England, the punishments of the laws do not deter from committing crimes. Another curious fact concerning this land,—the females of which, common report says, and I believe says true, are not so chaste as in our country, is, that adultery is punished. The same crime was punished in France before the Revolution, and is still occasionally punished in that country, which seems also to substantiate the assertion, that the punishments of laws do not deter from committing crimes.
Out of the 525, 35 were punished with death. Some were strangled, some were hung, some were beheaded, some were broken on the wheel, and some were dragged to the place of execution on a cow’s hide, stretched over a hurdle, and were beat to death with iron clubs, beginning, as the sentence says, at the head. Such barbarities are disgraceful, and were it not that they have never been made a matter of public examination, it would be extraordinary how they should be continued by the mild, kind, amiable, and enlightened Germans. The sentiments of men are formed by their gradual progress in knowledge, while the punishments inflicted by the laws are the remnants of times of ignorance and barbarity. Though institutions do not stop, they impede our progress; and nothing but the native goodness of the heart, and the common interest of men, enable them to triumph over the obstacles which the vain meddling of a few legislators have laid in their paths.
Cruel as the present punishments appear, they are now much more humane than formerly. Those ordered by the code of Charles V. to be inflicted have been mentioned, and, in the beginning of the eighteenth century, it was customary to make the punishment of death so painful as possible. The criminal was frequently tortured in public, and every fine feeling was destroyed by frequent and barbarous executions. “The robbers of the gold table at Lüneburg were suspended from a gallows; on the following day when they were not dead they were taken down, their tongues were cut out and burnt, and the mangled body was again hung up by the heels, and dogs were tied up near it.”∗
The principal crimes punished with death are murder, arson, highway robbery, with attempt to murder, and repeated stealing. The other punishments inflicted are confinement, barrow-wheeling, and public labour, called “Karren schieben,” for the men, and confinement in a penitentiary, Zucht-house, for the women. Some are confined for life, and some for the short space of three months. All the intervening degrees are inflicted. These are the punishments which are generally in use. It is, however, sometimes customary to punish people for minor offences by making them stand against a wall, or against a post, with an iron collar round their necks. There are such posts, with collars, or collars chained to the churches, in most of the parishes, and the offences which they are employed to punish may be known by the inscriptions sometimes painted on them,—“For disobedient servants.” The custom which Selwyn, or some other wit, facetiously denominated a proof of a civilized country, exposing the bodies of men suspended from a gallows, for the purpose of terrifying others, is still continued in Hannover. One that I saw had been a robber and a murderer, but appeared to have committed no crime so great as refusing to confess when tortured. Other persons had in their agonies accused him, but his sturdy nerves, or his consciousness of innocence, refused obedience to the rack, and his tongue uttered not, at the command of his judges, the mechanical acknowledgments of his guilt. He was perhaps guilty, but his honour was piqued, as a superior thief, not to confess, and, after having been racked, he died protesting his innocence.
Few persons are punished in Hannover compared to the number punished in England, for uttering or coining base money, and the crime of forgery is almost unknown. These facts appear to prove certainly one, perhaps two things. They certainly prove that the number of forgeries in England are the effect of our paper money, and paper money has been created by a regulation of the society, and they make it probable that punishments, forgeries being very severely and very generally punished in England, absolutely cause an increase of the crimes punished. This is probably an effect of all the punishments inflicted by laws.
To have a correct view of the mass of misery which is directly inflicted by the laws of Hannover under the name of punishments, those which are inflicted by the police, which, though trifling as to severity, are of importance as to numbers, must be added to those which have been already mentioned. It inflicts a few days’ imprisonment, or it punishes with fines, for what often appeared to be very trifling offences. The police of the town of Hannover alone punishes on an average 180 persons monthly, and lists of the persons punished are regularly published to serve as an example to others, and to prove that the police is an active useful institution. To establish a body of men to keep order and punish crimes, is like establishing a legislative body. This is encouraged to make laws, and that to inflict pain. The members must shew that they are useful. The number of persons they punish is the index of this utility, and it is their object to shock us with the number of crimes which are committed, rather than to prevent them. To establish such a body of men argues in the society an avarice of blood and pain, which it is their business to gratify. A disposition to gratify it, even unjustly, is known to belong to the police of France and Germany, to the constables of England, and to the darogahs of India;∗ and the fact ought to caution us not to empower and set apart a particular body of men to detect crimes and to punish them.
Taking the population of Hannover at 1,314,124, and that of England and Wales at 10,000,000, the number of people punished in the former country, in one year, without including those punished by the police, is 525. The proportion which this number bears to the population of the country should make the number punished in one year, in such a population as is stated to be in England and Wales, 3995, but in the same year there were 13,932 actually committed to prison, and 9050 punished. The police punishments of our country are also not included in this amount. In Hannover, one person out of 2503 is punished; in Britain, one out of 719 is committed, and one out of 1104 is punished. It may be fairly stated, therefore, that there are proportionately twice as many persons punished in England and in Wales as in Hannover; and it must be further remarked, that many of those persons punished in Hannover are punished for trifling crimes, such as never enter our gaol calenders. This is a frightful picture of the comparative morality of England. At the same time, it is pleasing to record, that the number of executions were comparatively less;—in Hannover, one out of 17 of the whole number of persons punished was executed; in England and Wales only one out of 78. We have, therefore, more punishments, but a less number of persons are punished with death.
Unhappily for the cause of freedom, this part of the character of our country is too well known on the Continent. Much of the evil which disfigures other countries is hidden from the view of the world, but there is not a speck on our illuminated land that is not seen and known. She is bespattered, too, with much imagined dirt, and she may well say, with Schiller’s Maria Stuart,
To us this sort of exposure is a consolation, for it must bring amendment after it, but it is pernicious to the reputation of freedom. All its adversaries, and many of its friends, attribute the crimes of our country to its political freedom. I have met many sensible men in Germany who entertained such an opinion as this, and who preferred their own all-directing governments to ours, because they thought a less degree of interference on the part of government would bring on Germany the same atrocity of crime of which they read in English newspapers. In this opinion there are probably few of our countrymen who will join. The multitude of crimes in Great Britain is much more to be attributed to the increase of taxation, and to the many temptations held forth by our high duties to break through the principles of virtue, and then fall into the deepest abyss of vice. We have been fleeced to build up the old despotisms of the world, which has degraded our people, and half destroyed their morality. The wars in which we have been engaged for the last thirty years, in the name of liberty, have brought her into disrepute by corrupting a people who still profess to admire her.
There is no set of opinions which are more likely to influence the happiness of a nation than those which it may entertain relative to criminal justice. It is, therefore, a pleasure to observe, that all the nations of Europe are now, for the first time, beginning to regard this subject with that philosophic attention which it merits. The improvement which has taken place in the humanity of the Germans has been mentioned, and the whole of that mild people are averse from the cruelties of their former bloody and barbarous codes. Many of their literary men busy themselves with discussions on laws and tribunals. Knowledge is rapidly advancing. New codes of laws, both criminal and civil, have been talked of for all Germany, and whatever defects they may have in the eyes of our posterity, they will assuredly possess the wisdom and the humanity of this generation.
It is right to add, that all new laws and regulations are carefully published by being affixed near church doors, and in other public places; and the whole of those of Hannover are regularly printed in quarto, under the name of Gesetz Sammlung, Collection of Laws.
[∗]Weimar and Oldenburg have recently adopted the code of Bavaria.
[∗]Spittler, Geschichte des Fürstenthums, Vol. I. p. 127–129.
[∗]Venturini, p. 659, Vol. III.
[∗]See History of British India by James Mill, Esq. Vol. III. p. 321.
[∗]“The world knows the worst of me, and I can say, I am better than my fame.”