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Though the number of the executed are comparatively few, with respect to the numbers that are condemned, yet they are positively many; so many, as to shock the humanity of every man that has not lost all feeling--and this is the consequence of a precarious and uncertain administration of justice; for, were justice invariably and steadily administered, according to the laws, and to the duty of those who are to dispense them—as offences would be few, so would executions be few also. (n)
The cause of all this is one and the same, both in town and country, viz. the uncertainty of punishment, and the almost certainty of reprieve. That there are so many executed in London, is very shocking to be considered; but it is more shocking still to conceive, that, perhaps, not even a few of those many would ever have suffered, if the multitude of reprieves that are granted to far the greater majority of convicts, did not take off the force of the sad examples which are made, so as to leave the chance of life at least three to one in favour of the guilty. How injurious is this to those who are executed ! How monstrous is it to take men's lives away under pretence of example, and yet do this with such a partiality, as to destroy the very end of their sufferings, by so far weakening the force of that example, as to render it void and of none effect! (0)
Athly. The uncertainty of punishment in England is occasioned by the improper lenity of judges and juries.
Instead of lamenting the multiplicity of our penal laws, we ought rather to lament the occasions of them; which indeed are so frequent, as to make it impossible for society to exist, unless remedies are thought of and prescribed to stop their progress. These remedies, like all others, must be applicable to the diseases which they are to encounter, and be
faithfully and duly administered, otherwise they can be of no effect, and consequently of no value whatsoever. I may say, that the legislature has from time to time been assiduous in meeting crimes, as they have arisen, with wholesome laws; but those, whose duty and office it is to administer these laws, have now, for many years, been preferring their own feelings as men, to the duty which they owe the public as magistrates ; and have been making so wanton and indiscriminate an use, or rather abuse, of certain discretionary powers with which they are invested, that safety and impunity invite forth and harden offenders, while danger and distress are every where menacing the innocent. (p)
The state of the criminal laws in this land, may soon be said to resemble that of the laws of Vienna, as represented by · Duke Vincentio, in Shakespeare's Measure for Measure.
We have strict statutes, and most biting laws,
But when such a reader of our laws is told, that offences against those laws, are daily committed-that they are multiplied now, beyond the example of former ages--that no country is so infested with the depredations of robbers of all
kinds; he would be at an utter loss to account for this, till he was told, that the dispensers of these laws very rarely put them in execution; and therefore, that they were little more than a scare-crow, set in a field to frighten the birds from the corn, which at first might be terrible in apprehension, but in a little time became familiar, and approached without any danger, by even the most timorous of the feathered race. (r)
Holy writ tells us, that, when Saul the king of Israel had received a positive commission from God to destroy the Amalekites utterly, and all that belonged to them, he executed his commission with such partiality, as to save the Amalekite king, Agag, alive ; and the best of the sheep, oxen, and fatlings, and all that was good, and would not utterly destroy them ; but every thing that was vile and refuse, that he destroyed utterly. When Samuel afterwards met Saul, Saul expressed himself thus ;-—"Blessed be thou of the Lord, I have perfor“med the commandment of the Lord.” And Samuel said, “ what meaneth then this bleating of the sheep in mine cars, “and the lowing of the oxen which I hear?”(s)
Now, if our judges of assize, really execute their commissions as they ought, what meaneth then these numbers of burglaries, highway robberies, these depredations, by day and night, in our roads, streets, houses, fields ? —howare our newspapers filled with daily accounts of mischiefs done on the persons and properties of his majesty's subjects, by felons of every denomination ? (t)
Some have said, that a scruple of conscience in Judges, prevents the execution of the laws against certain offencesthat they think them too severe for the offence, and therefore constantly reprieve those who are convicted. But I do not apprehend that this is at all the province of a Judge-what
(r) Page 19.
(s) Page 33.
(t) Page 34.
ever laws the parliament sees necessary to enact, the Judge, agreeably to his oath of office, is bound to declare and pronounce; and his standing between the judgment and execution, is taking upon himself, not only to be wiser than the law, but a power, which, if wantonly and causelessly exerted, must render the most important and salutary laws contemptible and useless. — The Judge, in such a case as this, sets himself above the law, and presumes to exercise an authority with which the constitution has not intrusted even the crown itself. We all know how a dispensing power over the penal laws was attempted in the days of Kings who aimed at arbitrary power, by setting themselves above the laws, and wanting to govern without them; and we also know what this ended in. But where is the difference, - between the arbitrary prevention of trial, and the arbitrary prevention of execution ?—the former, perhaps, may be more glaringly arbitrary, but the latter will answer the same end (t).
But to exercise this power of reprieve wantonly, and indiscriminately, so as to save felons only because they are condemned ; to defeat the end of the law by a mere arbitrary dispensation of a Judge, who, to gratify his feelings as a man, violates his oath and duty as a magistrate, is to abuse a most salutary power to the most mischievous purposes. It makes void the law ; its terror, and therefore its best use, is no more--the * innocent public suffers, the guilty invader of its property triumphs (u).
** Tully defines pity, us Ægritudo ex miseria alterius injuriâ laborantis"_" An anxiety, care, or sorrow, (of mind), excited by the misery of another, labouring under injury.” If, this definition be just, one should think, that the injured public, rather than the injurious robber, should be the object of the magistrate's compassion.
It was a fine saying of the great and good lord chief Justice Hale-“When I find myself swayed to mercy, let me remember, that there is a mercy likewise due to the country.” (1) Page 47
(u) Page 52.
What has been said in the foregoing pages, is more immediately applicable to Judges on ibe circuits. They are the magistrates who are appointed to carry justice into every femote part of England; and on their due execution of their high and important oflice, the whole country must look for peace and safety : these are what every man has a right to enjoy, as far as the laws can ensure them to lim; therefore, to rob those laws of their effect, by a careless, partial, or inadequate administration of them, is a breach of trust of the most dangerous and mischievous kind : notwithstanding this, such an administration of the laws has been long creepi:ng in upon us, as the length of the gaol-calendars, more especially in the home counties, too plainly testify. I kuow that many other causes are invented for this ; some even lay it upon
the laws themselves--but no man has a right to do this, till those laws have been steadily, faithfully, impartially, and uniformly executed in every part of the kingdom. "Tis this, and this alone, that can deliver us from the dreadful situation to which we are now brought, unexampled in former times--bad though they might be, still these are worse.—The reason of this is, that there is almost an universal want of discipline, a general failure of attention, in our superior magistrates, to the vast importance of punitive justice: this induces the wicked and profligate to become still more so ; having so many chances in their favour, they very little concern themselves about consequences-or, as a wise King said “Because sentence against an evil work is not executed speedily—and we may also say-certainly) therefore the heart of the sons of men is fully set in them to do evil."(a)
It has been before observed that some judges have reprieved, for many offences made capital by the law, such as
(a) Page 86 to 89.