sheep or a horse, to snatch a man's property out of his hands and run away with it, to steal to the amount of forty shillings in a dwelling house, or to the amount of five shillings privately in a shop, nay, to pick a man's pocket of the value of only twelve pence farthing, are all crimes punishable with death. On the other hand, for a man to attempt the life of his own father is only a misdemeanor : to take away another's life, and to brand his name with ignominy, by a premeditated perjury, is not considered as murder, nor thought deserving a capital punishment: to stab another, under circumstances of the blackest malice, if the unfortunate object should, after a long and painful illness, recover of his wound only to breathe out the rest of his days in torment and disease, is punishable only by fine and imprisonment: to burn a house, of which the incendiary happens to have a lease, though it be situated in the centre of a town, and consequently the lives of hundreds are endangered, is liable to no severer punishment +. If we look into the legal definition of crimes, we discover still grosser inconsistencies: we find, that under certain circumstances a man may steal without being a thief, that a pickpocket may be a highway robber, a shoplifter a burglar, and a man who || 8 Eliz. c. 4. 2 Hale's P. C. 366. *Foster 131. + It has sometimes happened, that a man, who has committed a very atrocious crime, has been hanged for a circumstance attending the perpetration of it which was perfectly innocent. Thus a servant, who had attempted to murder his master, by giving him fifteen wounds upon the head, and different parts of his body, with a hatchet, was convicted, and executed, not as an assassin, but as a burglar, because he had been obliged to lift up the latch of his master's door to get into his chamber. Hutton, 20. Kel. 67, 1 has no intention to do injury to the person of any one, a mur- a child • At the Sessions held at the Old Bailey in last July, was tried for this species of highway robbery, committed upon a porter: the fact was proved beyond all doubt, and the jury acquitted the prisoner. +3 Inst. 109. 4 Rep. 19. b. Yelv. 34. 3 Inst. 56.Kel. 117. § Thoughts, &c. p. 16. The author of the Thoughts, says, it is true, that "as a friend to examination and revisal of all kinds, he should not be sorry to hear, that a revisal of our penal statutes was in agitation, because it is better that the laws should be altered into something less severe, than not be executed" as they now stand; that is, of two evils it notwithstanding those laws themselves thus proclaim their own absurdity, and call aloud for reformation. (h) It will be unnecessary for me, however, upon the present occasion, to speak of the defects of those laws, any otherwise than as they are unreasonably severe; for it is that defect alone which can be remedied by the execution of the laws; and, in treating of that defect, I shall not, with the Marquis of Beccaria, and the many writers who have adopted his humane principles, contend that the punishment of death ought not, and cannot legally be inflicted by the legislature for any crime committed under any circumstances; but this appears to me abundantly clear, that death cannot be inflicted for a mere invasion of property, consistently with reason and justice, nor without a gross violation of the laws of nature, and the precepts of our religion. Between a sum of money and the life of an individual; there is no proportion, or, to speak more accurately, they are incommensurable. This observation has been sometimes made with a kind of compassionate triumph over the folly and ignorance of our barbarous ancestors, who punished the crime of murder by a fine, payable to the king, and to the relations of the deceased t; and yet we See p. is best to chuse the least: but at the same time he intimates it as his opinion, that no good could come of such a revisal. 132, 3, 4. (h) Page 24. * Lex jus necis non habet in omnes cives ex quovis delicto, sed demum ex delicto tam gravi ut mortem mereatur. Grot. de jure bel. lib. 2. c. 1. § 14. + Les attentats contre la vie d'un homme ont été jugés, avec raison, les plus contraires au but de la société, & ont été punis avec la plus grande rigueur chez toutes les nations policées. Il ne convenoit qu'à des barbares de se jouer de la vie de l'homme, en la compensant avec de l'argent. Principes de la legislation universelle: Amsterdam, 1776. tom. i. p. 168.-Ce n'est que la férocité & l'ignorance de nos surely have far more reason to blush than to triumph, since the same observation applies much more forcibly to the laws subsisting in this enlightened, and, as it is called, this philosophical age. (i) All punishment is an evil, but is yet necessary, to prevent crimes, which are a greater evil. Whenever the legislature therefore appoints for any crime, a punishment more severe than is requisite to prevent the commission of it, it is the author of unnecessary evil. If it do this knowingly, it is chargeable with wanton cruelty and injustice; if from ignorance, and the want of a proper attention to the subject, it is guilty of a very criminal neglect. If these principles be just, the legislature of Great Britain must, in one or other of these ways, be culpable, unless it be impossible to prevent theft by any punishment less severe than death. The author of the "Thoughts on executive justice" seems to think, that it is impossible, and that these severities are therefore to be justified on the ground of necessity. But experience shews the er oneousness of this opinion, because in several European states, where the punishment of death is never inflicted but for the most atrocious crimes, these lesser offences are very rare; while in England, where they are punished with death, we see them every day committed ‡; and when, in the reign of Henry the eighth, so many criminals were executed, that their numbers were computed to amount to two thousand eve barbares ancêtres, qui a pu imaginer de mettre un taux à la vie de l'homme, & de convertir le châtiment dû au meurtre, en amendes pécuniaires évaluées on bétail. Ibid. p. 191. The reason, it will be said, is because the laws in England are executed; but it is inseparable from the nature of too severe laws that they should not be executed. Draconis leges, quoniam videbuntur impendio acerbiores non decreto jussoque; sed tacito illiteratoque Atheniensium consensu obliteratæ sunt. Aul. Gell. lib. 11. c. 18. (i) Page 27. ry year, crimes seem to multiply with the number of executions. "So dreadful a list of capital crimes," says Mr. Jus tice Blackstone, after having lamented that they are so numerous, instead of diminishing, increases the number of offenders." Nor is this a phenomenon very difficult to be accounted for in proportion as these spectacles are frequent, the impression which they make upon the public is faint, the effect of the example is lost, and the blood of many citizens is spilt, without any benefit to mankind. But this is not all; the frequent exhibition of these horrid scenes cannot be indifferent: if they do not reform, they must corrupt. § The spectators of them become familiarized with bloodshed, and learn to look upon the destruction of a fellow-creature with unfeeling indifference. They think, as the laws teach them to think, that the life of a fellow-citizen is of little value; || and they imagine they see revenge sanctified by the legislature, for to what other motive can they ascribe the infliction ofthe severest punishments for the slightest injuries? And, where the moral character of a people is depraved, crimes must be frequent and atrocious. (b) 4 Blackst. Com. 18. § Carnifex, & obductio capitis, & nomen ipsum crucis, absit non modo a corpore civium Romanorum, sed etiam a cogitatione, oculis, auribus. Harum enim omnium rerum non solum eventus atque perpessio, sed etiam conditio, expectatio, mentio, ipsa denique, indigna cive Romano atque homine libero est. Cic. pro C. Rabirio, 5. How different was the policy of the Roman republic! The life of a citizen was there thought so valuable, that to put him to death was almost a parricide (propè parricidium necare); and the act of saving a life so precious was rewarded with one of the noblest honors of the republic, a civic crown. Can one be surprised that policies so unlike have produced such contrary effects? that at Rome every bosom glowed with patrotism, and that at London public virtue is become a jest? (b) Page 32. |