it might, with propriety, be left to the discretion
of
the court, in certain cases of second offences, to inflict
the same punishment as in cases of grand larceny;
since it can
hardly be supposed, that any material or
lasting effect can be
produced on a criminal, by the
labour and discipline of a
penitentiary house, in a
shorter time than four or five years. And
if he is
incorrigible by means of solitude, temperance, and
cleanliness, he will not merit, if he is guilty of a
second
offence, a punishment less severe than impri-
sonment for that
length of time.
It is not requisite, here, to enter into the details
of this plan of
a county prison; which, if found, on
experiment, to succeed in the
city of New York
be extended to Albany
ties, where the increase of population, and the fre-
quency of petty offences, may render it necessary.
Before concluding this account, it may be
proper to
make a few remarks, the result of some observation
and
experience, on a subject which may have an essen-
tial
influence on the present scheme of punishments.
It has been observed by BECCARIA, whose opinions
have the force of
axioms in the science of penal law,
that as punishments
become more mild, clemency
and PARDON become less
necessary; — that clemency
belongs to the
legislator, and not to the executer of
the laws: a virtue which
ought to shine in the code,
not in private judgments. To show
mankind that
crimes may be pardoned, or that punishment is
not
the necessary consequence, is to nourish the flattering
hope of impunity.—Let then the executer of the
law be inexorable, but let the legislator be tender,
indulgent,
and humane.*
* Dei Delitti e delle
Pene, §20.—A misura che le
pene divengono più
dolci, la clemenza ed il perdono
diventano meno necessari, &c.
These principles, though just in theory, necessarily
presuppose a
perfect system of penal law, by which
each punishment is with such
exact justice appor-
tioned to each crime, that no difference of
circum-