remedy some of those defects by their mode of executing the laws, and particularly by a mitigation of that indiscriminating severity, which, while it inflicts the same punishment on a pickpocket as on a parricide, confounds all ideas of justice, and renders the laws, objects, not of veneration and love, but of horror and aversion. A more permanent and a more certain correction of those defects would be so great a national benefit, as one would have thought every good and reflecting citizen must ardently have wished for. At least one would have supposed that humanity, as well as patriotism, must have forbidden any endeavours to cloud the prospect of such a reformation, and much more any efforts to lay restraint upon the sovereign, in executing, according to his oath, justice in mercy, and to enforce that summum jus, which, where the laws are such as constitute the criminal code of England, must ever prove summa injuria. `(a) This ungrateful task, however, has been lately undertaken, and an attempt has been made to restore the law to all its sanguinary rigor, by the author of thoughts on executive justice, with respect to our criminal laws; a work proceeding on principles, which are now so little prevalent, and breathing a spirit so contrary to the genius of the present times, that I should have classed it amongst those performances, with which every literary age has been infested, and which are calculated to render the authors of them celebrated only for the singularity of their opinions, and should have therefore left it to sink into that oblivion, to which such compositions seldom fail to be soon consigned, had I not found that the warmth and the earnestness of the writer's style had gained him converts, and that some of the learned judges, to whom his work is addressed, had seemed inclined to try the terrible ex (a) Page 5. periment which he recommends. Errors which produce such effects are not to be despised as harmless; and it is the duty of every man, who has the use of reason, and who sees their fallacy, to expose and to refute them. (b) What the author's motives in writing were, God and himself only know: I would fain persuade myself, that they were not such as I have already alluded to; that he has a just claim to the title which he assumes, of "a sincere well-wisher to the public ;" and that he entertains no particle of doubt about the truth and justice of the opinions, which he has ventured to publish and yet something more even than this seems necessary, before a man hazards the promulgation of such rigid doctrines to the world; and that he should not only know himself to be sincere, but believe himself to be infallible : for who, that thinks he is liable to error, can venture to propose a scheme, which, if it be erroneous, will have wantonly deprived the state of many subjects, and turned loose upon the unpitying world a miserable troop of widows and of orphans? An experiment, which is made at such a cost, ought hardly to be tried while there remains a possibility that it may fail of success. There are some opinions, which men fondly persuade themselves are truths, and truths important to mankind, which are, however, of such a nature that no man should dare to propound them, who is not ready to prove his sincerity by offering himself a martyr in their cause. If a legislator propose laws, like those of Draco, written in the blood of his fellow-citizens, he must seal them with his own, like Lycurgus, if he would escape the reproach of cruelty. (c) That the author of the thoughts on executive justice had an inflexible confidence in the truth of his doctrines, might have been charitably supposed, if he had supported them only by cool and dispassionate arguments. But what are we not compelled to think, when we see him availing himself of all the most specious colorings of rhetoric, and employing the strongest hyperboles *, and the most exaggerated descriptions +; at one time artfully and eloquently summoning to his aid the fears of his timid readers, and at another kindling the rage and indignation of what he calls the "poor, oppressed, and innocent public;" when we find him adopting that ferocious language, with which, in more barbarous times, attorney-generals have sought to daunt the miserable state-prisoners, through whose blood they were to wade to their disgraceful honors: when we hear him exclaiming, that "the lurking foot-pad lies, like a dangerous adder, in our roads and streets, and the horrid burglar, like an evil spirit, haunts our dwelling-houses, making night hideous §;" and when we find him attempting, as it were, to intimidate every man from questioning his doctrines, and throwing out the anticipating reproach, that none "can reasonably find fault with the laws, but the villain, who is the object of them || ?" But, without examining into this writer's motives, or farther commenting upon the manner in which he has executed his design, I shall venture, even at the risk of encountering the black imputation which he seems to think should light upon the man, who presumes to call in question the perfection of * No man can stir out a mile from his house without an apprehension of being robbed, and perhaps murdered." Thoughts, &c. p. 73. 1st. edit. p. 77. 2d. edit. See too p. 4. + Ibid. p. 5. Appendix, p. 62. 63, 1st. edit. p. 241. 242. 2d. edit. Appendix, p. 3. 59, 1st edit. p. 181. 238, 2d. edit. || Thoughts, &c. p. 7. our laws, to dispute both the positions which he has sought to establish. (e) He first asserts, that the penal laws of this country are excellent *, and that they have no severity but of the most wholesome kind † ; and this serves as the foundation of that proposition, which is the capital object of his work, namely, that those laws ought to be strictly executed, so that the certainty of punishment may operate to the prevention of crimes. If the former of these positions were true, no man of common understanding could dispute the latter; for, if laws be perfect, they ought undoubtedly to be religiously observed; but, if our laws, instead of being excellent, should appear to be, as it is easy to demonstrate that they are, in many instances, unreasonably severe, and such, as that the punishment bears no proportion to the crime, it must surely follow, that the strict execution of them is neither expedient nor even possible. (f) In order to judge of the good sense and propriety of this writer s doctrines, it will be necessary, in the first place, to take a view of those laws, which are the subject of his panegyric, and which, he tells us, "he doubts whether any other human system could equal, for the suppression of public inju ry." To descend to minute particulars would be putting the patience of my readers to a too severe, and an unnecessary trial; for a very transient view will suffice to discover the absurdity and inhumanity of the system, if that name can with any propriety be given to a mass of jarring and inconsistent laws, which are severe where they should be mild, mild where they should be severe, and which have been, for the most part, * Thoughts, &c. p. 2. 5. 16. 17. + Ibid. p. 8. Thoughts, &c. p. 133, 1st. edit. 139, 2d. edit. (e) Page 13. (f) Page 14. the fruits of no regular design, but of sudden and angry fits of capricious legislators. (g) In entering upon this task, the first thing which strikes one, is this "melancholy truth, that, among the variety of actions, which men are daily liable to commit, no less than a hundred and sixty have been declared by act of parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death *." When we come to enquire into the nature of the crimes of which this dreadful catalogue is composed, we find it contain transgressions, which scarcely deserve 'corporal punishment, while it omits enormities of the most atrocious kind. We find in it actions, to which nothing but the terror of some impending danger to the state could ever have given a criminal appearance +, and obsolete offences, whose existence we learn only from those statutes, which are still left standing as bloody monuments of our history, though the causes which gave rise to them have long since ceased ‡. On the one hand, we see the invasion of a man's property, though but to a small amount, and unaccompanied by violence, treated as the greatest of all enormities. To steal a *4 Blackst. Com. 18. The number of felonies has been consid. erably increased since that author wrote. + 35 Eliz. c. 1. § 3. 35 Eliz. c. 2. § 10. 39 Eliz. c. 17. It is to such laws as these that one may apply the observation of my lord Bacon, that, "there are a number of ensnaring penal laws which lie upon the subject; and, if in bad times they should be awaked and put in execution, would grind them to powder." Proposal for amending the laws. See 43 Eliz. c. 13. 27 Eliz. c. 2. 9 Ann. c. 16. 9 Geo. 1. |