Sparks Commentary: Some thoughts from Blackstone about punishing criminals

“I proceed in the next place to consider the general nature of punishments : which are evils or inconveniences consequent upon crimes and misdemeanors ; being devised, denounced, and inflicted by human laws, in consequence of disobedience or misbehaviour in those, to regulate whose conduct such laws were respectively made.”

– Sir William Blackstone’s “Commentaries on the Laws of England” (1769), Book 4, Chapter 1

Why do we punish small crimes differently from big ones? For that matter, why do we punish criminals at all? Many have asked these questions throughout history. There has been a great variety of answers from all kinds of people. Blackstone’s answers were not new even then, but they were solid answers, and they’re still relevant today.

Thus, I will examine some enlightening passages from his magnum opus, the “Commentaries on the Laws of England.” The fourth and final book of that work is entitled “Of Public Wrongs.” “Public wrongs” is just another way of saying “crimes.” Thus, this is Blackstone’s treatise on criminal law – and specifically, the criminal laws of England at this time. I should mention that all quotations in this particular blog post are from Book 4, Chapter 1. Thus, I will not note this every time. (Incidentally, this particular volume was first published in 1769.)

Coat of arms of Great Britain, 1714-1800

Why do we punish criminals at all? Answer: Reforming offenders, deterring others …

First, why do we punish criminals at all? Here are Blackstone’s three reasons:

“As to the end, or final cause of human punishments. This is not by way of atonement or expiation for the crime committed ; for that must be left to the just determination of the supreme being : but as a precaution against future offences of the same kind. This is effected three ways : either by the amendment of the offender himself ; for which purpose all corporal punishments, fines, and temporary exile or imprisonment are inflicted : or, by deterring others by the dread of his example from offending in the like way … which gives rise to all ignominious punishments, and to such executions of justice as are open and public : or, lastly, by depriving the party injuring of the power to do future mischief ; which is effected by either putting him to death, or condemning him to perpetual confinement, slavery, or exile.” (Source: Blackstone’s “Commentaries”)

Sir William Blackstone

… and depriving the offender of “the power to do future mischief” (in extreme cases)

Blackstone continues:

“The same one end, of preventing future crimes, is endeavoured to be answered by each of these three species of punishment. The public gains equal security, whether the offender himself be amended by wholsome correction ; or he be disabled from doing any farther harm : and if the penalty fails of both these effects, as it may do, still the terror of his example remains as a warning to other citizens. The method however of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means to exceed it : therefore the pains of death, and perpetual disability by exile, slavery, or imprisonment, ought never to be inflicted, but when the offender appears incorrigible : which may be collected either from a repetition of minuter offences ; or from the perpetration of some one crime of deep malignity, which itself demonstrates a disposition without hope or probability of amendment and in such cases it would be cruelty to the public, to defer the punishment of such criminal, till [he] had an opportunity of repeating perhaps the worst of villanies.” (Source: Blackstone’s “Commentaries”)

Sir William Blackstone

Why do we punish small crimes differently from big ones?

Next, Blackstone cites the Italian philosopher Cesare Beccaria. Beccaria is best remembered for his 1764 work “Dei delitti e delle pene” (“On Crimes and Punishments”). Beccaria was one of the classic thinkers on this subject, along with Montesquieu. Thus, Blackstone cited Beccaria by saying: “It is the sentiment of an ingenious writer, who seems to have well studied the springs of human action [footnote], that crimes are more efectually prevented by the certainty, than by the severity, of punishment.” (Source: Blackstone’s “Commentaries”) The footnote here is to “Beccar. c.7.” Again, the “Beccar.” is short for “Beccaria.” Thus, for Blackstone, Beccaria was “an ingenious writer, who seems to have well studied the springs of human action.”

Cesare Beccaria, Italian philosopher

According to Blackstone, because it actually protects society better!

Next, Blackstone cites the French philosopher Montesquieu. Here is the passage:

“For the excessive severity of laws (says Montesquieu [footnote]) hinders their execution : when the punishment surpasses all measure, the public will frequently out of humanity prefer impunity to it. Thus the statute 1 Mar. st.1.c.1.recites in its preamble, ‘ that the state of every king consists more assuredly in the love of the subject towards their prince, than in the dread of laws made with rigorous pains ; and that laws made for the preservation of the commonwealth without great penalties are more often obeyed and kept, than laws made with extreme punishments.’ ” (Source: Blackstone’s “Commentaries”)

Baron de Montesquieu, French philosopher

Making no distinction between great and small offenses makes great offenses more likely …

Blackstone continued:

“It is moreover absurd and impolitic to apply the same punishment to crimes of different malignity. A multitude of sanguinary law (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest defect either in the wisdom of the legislative, or the strength of the executive power. It is kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind : yet that magistrate must be esteemed both a weak and a cruel surgeon, who cuts off limb, which through ignorance or indolence he will not attempt to cure.” (Source: Blackstone’s “Commentaries”)

Sir William Blackstone

… as a robbery example illustrates

To support his argument, Blackstone uses a famous example, which I will quote below:

“It has been therefore ingeniously proposed [footnote], that in every state a scale of crimes should be formed, with a corresponding scale of punishments, descending from the greatest to the least : but, if that be too romantic an idea, yet at last a wise legislator will [make] the principal divisions, and not assign penalties of the degree to offences of an inferior rank. Where men see no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt. Thus in France the punishment of robbery, either with or without murder, is the same [footnote] : hence it is, that though perhaps they are therefore subject to fewer robberies, yet they never rob but they also murder.” (Source: Blackstone’s “Commentaries”)

Sir William Blackstone

In Blackstone’s England, there were 160 offenses eligible for the death penalty …

In this respect, the laws of Blackstone’s England were better than those of France. But they also had some serious flaws, as Blackstone pointed out next:

“Yet, though in this instance we may glory in the wisdom of the English law, we shall find it more difficult to justify the frequency of capital punishment to [be] found therein ; inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures. It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than an hundred and sixty have been declared by act of parliament [footnote] to be felonies without benefit of clergy ; or, in other words, to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of offenders. The injured, through compassion, will often forbear to prosecute : juries, through compassion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence : and judges, through compassion, will respite one half of the convicts, and recommend them to the royal mercy. Among so many chances of escaping, the needy or hardened offender overlooks the multitude that suffer ; he boldly engages in some desperate attempt, to relieve his wants or supply his vices ; and, if unexpectedly the [law] of justice overtakes him, he deems himself peculiarly unfortunate, in falling at last a sacrifice to those laws, which long impunity has taught him to condemn.” (Source: Blackstone’s “Commentaries”)

Jeremy Bentham

… a situation that Blackstone abhorred, and condemned in no uncertain terms

Those who have dismissed Blackstone as an “apologist” for his era’s English laws would do well to examine the passage cited above. Blackstone would not have called this “a melancholy truth,” if he thought that the laws of his time were always fair and good – a view that some have erroneously attributed to him. For example, the English philosopher Jeremy Bentham dismissed him as an apologist. One gets the feeling that neither Bentham nor his followers bothered to read Blackstone very closely, if they ever read him at all.

Jeremy Bentham

Conclusion: Blackstone’s answers are still relevant today, and are still worthy of study

So in summary, Blackstone’s thoughts on punishing criminals are still relevant today. By modern standards, the idea that smaller crimes should be treated differently from greater crimes might seem obvious, and his reasons for such distinctions might thus seem unnecessary, superfluous, or even irrelevant. But in the environment of his time, these arguments were sorely needed, and paved the way for some much-needed reforms. Our Founding Fathers were among those listening, and they applied his reasoning in the United States Bill of Rights. Specifically, they applied it in the Eighth Amendment, which said that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Source: Eighth Amendment to the United States Constitution)

Footnote to this blog post:

In 1689, the English Bill of Rights had said that “Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In 1776, George Mason used the exact same wording in the Virginia Declaration of Rights.

The only change that the Eighth Amendment made was to change “ought not to be” to “shall not be.” Otherwise, its wording is exactly identical to that of these prior two documents.

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