Ought punishment in any cases, and in what, to be defeasible by length of time? By the time, I mean, that has elapsed since the commission of the offense.
At first view, the answer seems to be clearly in the negative. For what, it may be said, has the circumstance of the length of time to do with the demand there is for punishment?
Upon a nearer view, however, it will be found, that the utility of prescription in certain cases is maintainable by specious, at least, if not conclusive, arguments.
As a foundation for these arguments, it must be admitted, that if in any case the suffering of the delinquent is not necessary for the attainment of the ends of punishment, the punishment ought not to be inflicted.
This being premised, it should seem, that in a view to one of the ends of punishment, to wit, reformation, the execution of it after a certain length of time, is not necessary. A certain number of years, suppose ten, has elapsed since he committed the offense: now then, in all this time; either he has committed similar offenses, Of he has not. If he has not, he has reformed himself, and the purpose of the law has been answered without punishment; if he has, he has been punished for subsequent offenses, and the discipline he stood in need of, has been already administered to him, at a time when he stood more in need of it than he can be supposed to stand at present.
Thus stands the argument upon the ground of Reformation: but of the facts alleged, one, it must be confessed, is rather problematical. If a man commit an offense, and is forthcoming ten years afterwards, it is by no means clear, from his not having been punished for any similar offenses, that he has not committed any. In the same manner that he escaped detection or prosecution for the first, he may have escaped detection or prosecution for any number of other similar offences. The difficulty of detection, the death of witnesses, the subtleties of procedure, are circumstances that afford ample grounds for disputing the force of the inference, from his not having incurred punishment to his not having deserved it.
Upon the ground of example, there is still less to be said in favour of prescription. If the prescription is not to take place till at the end of a long period, as ten years (the number above taken for an example), it will not contribute, in any assignable degree, to lessen the apparent value of the punishment. When a man meditates a crime, his great fear is the being detected and apprehended immediately almost upon the commission of it. The taking away the danger that would await him at the end of ten years, will add very little to his security.[2]
When a crime has been committed, either the person only who committed it may remain unknown, or the fact itself as well as the person. If either be unknown, it is plain no prosecution can have been set on foot. If both be known, then either a prosecution may have been set on foot, or not. It is only in case of there being no prosecution, that prescription has ever been allowed. The rule is, that a man shall not be prosecuted after that interval has elapsed, not that if he has been prosecuted and convicted, he shall not suffer.
The apprehension of danger commences at the time of the discovery. Persons who are about the criminal now understand that they have among them a thief, a robber, or a murderer: this cannot but give them some alarm. If no punishment at all is to be inflicted on him, if he is suffered to go on and live where he did before, how is this alarm to be quieted.
In crimes the object of which is a pecuniary profit, prescription ought not in any case to operate so as to protect the delinquent in the enjoyment of his ill-gotten acquisition.
Neither ought it not to operate in such manner as to leave innocent persons exposed to suffer from their terror or abhorrence of the criminal.
There are also certain crimes, in respect of which prescription ought not to be adopted in any case. Such are three species of homicide: viz. homicide for lucre, through wantonness, or from premeditated resentment; incendiarism; and the offence of sinking a vessel manned, or of laying a country under water. The mischief of crimes of these kinds is so great, that it seems paying too great a regard to the interests of the criminal, to adopt a rule that may contribute, though in ever so small a degree, to lessen the apparent certainty of the punishment; and the horror or terror, a fact of any of those kinds inspires when discovered, is so great, that that circumstance alone seems enough to overweigh any good that could be gained by it.
What is the good in view in prescription? It is the interest of one single person that is in question: the delinquent. The sparing of that single person from a suffering which it is supposed it may, in the case in which it is proposed the prescription should take place, not be necessary, at least not so necessary as formerly to the purposes of punishment to inflict. Now, when it is a crime by which men are exposed to suffer in their individual capacities, it can scarcely be detected, but a multitude of persons must begin to suffer: to wit, by the apprehension of his committing other such crimes in future, of which they may chance to be the objects; and this suffering of theirs will continue, till he be manifestly disabled to hurt them: the least penal method of doing which, is to send him out of the way.
Upon this slight examination, we perceive that the utility of prescription will vary greatly in respect of different offenses. To discuss this topic completely, it would be necessary, therefore, to consider it with a view to the several sorts of offences. To do this fully, belongs not to our present subject---all we can do in this place is, to offer a few general hints, just to put us in the way, and to serve as a clew to indicate the principal points upon which the enquiry ought to turn.
Whether a given person, detected after such a length of time, of a crime of the sort in question, is or is not an object of terror to those around him, is a question that can be answered only by a particular enquiry: it is a matter, therefore, that ought rather to be committed to the Magistrate who has the power of pardoning, than to be provided for by a general law.