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But even were it proved, that no other laws than those which teem with death are effectual to prevent these lesser crimes, it would not therefore follow, that the legislature is justified in enacting such laws. “ Though the end of punishment be to deter men from offending, it never can follow from thence, that it is lawful to deter them at any rate, and by any means*.” If the offence be such that the mischief of it is not of equal consideration with the life of a man, it will be a very poor apology indeed for these solemn murders, to
in the words which this writer adopts, that “the terror of the example is the only thing proposed ; and that one man is sacrificed to the preservation of thousands.”+ For, if he, who is guilty in but a small degree, may be made a victim to the public by being subjected to punishments, to which his offence bears no proportion, why may not he, too, who is perfectly innocent, be sacrificed on the same altar of the public, whenever such an expiation shall be thought requisite ? what principle can be urged in support of this doctrine which would not have completely justified the high priest, Caiaphas, when he declared of the most virtuous of men who stood without reproach, though a host of enemies were leagued against him, “ that it was expedient that one man should die for the people, and that the whole nation perish not ?I” and who are those thousands, for whose preservation this sacrifice is to be made ? if they be those whom the example may possibly deter from committing the same crimes, which would
* 4. Blackst. com. 10.
+ Thoughts, &c. p. 121, 1st. edit. 128, 2d. edit. I St. John, chap. xiv. 49 & 50. Upon which passage Grotius has this observation : Descriptio ingenii ejus generis, quos vulgo politicos vocant, qui, honesto atque justo insuper habito, nihil præter ütilitatem spectant, nec aliud in ore habent. Annot. in lib. Evang:
lead to the same fate, the argument is fallacious, and takes for granted the very point in question, the necessity of punishing those crimes with death.(a)
We are told, however, ş that the law being of public notoriety, those who incurits penalties do it voluntarily, and havetherefore no reason to complain. But beforethis doctrine was advanced, it ought surely to have been proved, that justice and morality are matters of positive institution ; for otherwise, how is a law the less unjust for being universally known? if the fiat of any earthly legislators can establish rules of morality, what right had the poor Muscovite to complain, who was executed for wearing his beard, when the law had prohibited that rude but natural ornament? or why should the miserable Japanese murmur, when he is put to a cruel death for having risked a few pieces of silver at some game of chance? Jam vero illud stultissimum existimare omnia justa esse quæ scita sint in populorum institutis aut legibus. || If laws operate in violation of the feelings and understandings of men, they are unjust and unwise, by however legitimate an authority they were enacted ; if they be repugnant to the character of a nation, they must remain unexecuted, by whatever regulations they are sought to be inforced. (6)
Or were the doctrine true, that no man, having full notice of a law, has a right to complain of the severity of the punishment which he suffers, in consequence of his having violated that law, it would still be inapplicable to the people of this country; for, though all our laws may certainly be known, and may perhaps be understood, by those who have leisure,
§ Thoughts, &c. p. 117, 1st. edit. 124, 2nd. edit. | Cic. de leg. lib. i. c. 15.
(a) Page 35. (6) Page 38.
capacity, and inclination to apply themselves seriously and industriously to so laborious a study; yet they as certainly are not, and cannot be known to the vulgar,* to whom that knowledge is most important; because it is the hardy crimes which want and ignorance suggest that are chiefly the objects of criminal laws; and not those timid and subtile frauds, which are the fruits of a refined education, and of artificial desires; though both are alike injurious to individuals and pernicious to society. It is true, that every year an immense volume of statutes is printed and publicly sold; but it might as well not exist, for the multitudes throughout the kingdom, who have not money to purchase it, time to peruse it, or capacities to understand the technical and
mys. terious language in which it is composed. † Other
* Anciently, at the end of every session of the parliament, all the statutes which had been enacted in it, were transmitted to the sheriff of every county in England, together with a writ, commanding them to promulgate those statutes throughout their bailiwicks; and the sheriffs, in obedience to this writ, caused the statutes to be proclaimed at their county courts ; but some time after the inven. tion of printing was brought into England, this practice was disused, and the statutes have never since been promulgated by any other means than by printing. (4 Inst. 26.) And yet, till the 5th year of the reign of Queen Anne, those who could read, and who consequently might be presumed to have knowledge of the law, were only burned in the hand for crimes which were punished with death in those who could not read, and who might therefore well be supposed ignorant of the law.
+ " There is such an accumulation of statutes concerning one matter, and they so cross and intricate, as the certainty of law is lost in the heap.” Bacon, proposal for amending the lawes. " This continuall heaping up of lawes, without digesting them, maketh but a chaos and conftision, and turneth the lawes many times to become but snares for the people, as was well said, Pluet
statutes indeed are heard of while they are only in agitation, and during every stage of their passing into a law; but it is far otherwise with penal acts; for, agreeably to the genius of modern politics, which estimate property far above life, though scarce a tax bill cscapes solemn and repeated discussions in parliament, yét every novice in politics is permitted, without opposition, to try his talents for legislation, by dealing out death among his fellow-creatures ; and laws of this kind commonly pass as of course, without observation or debate. Having thus stolen into existence, they lie dormant in the statute book, till they are notified to the world by the execution of some unthinking wretch, who, to his utter' astonishment, finds himself by law adjudged to die. Though even this can hardly be considered as a promulgation of the law; for who has curiosity or leisure to enquire what has been the crime of every individual among the multitudes that are executed? Let me not, however, be supposed to accuse either those who make, or those who execute the laws, of any design to conceal them from the people. Their only crime, undoubtedly, is gross neglect; but at the same time one is forced to confess, that negligence in legislators or governors is often as baneful as the most active tyranny. No matter whether ingenious malice inscribe laws in small characters, and upon tablets which the eye can scarcely reach ; or negligence couch them in unintelligible language, and plunge them into a voluminous farrago of legislation;
super eos laqueos ; non sunt autem peiores laquei, quam laruei le. gum,” Bacon. Speech on a motion concerning an union of laws. -How much this accumulation and intricacy has been increased since the time when Sir Francis Bacon wrote, may be conjecturídd from this single circumstance, that all the statutes prior to his fiwe are comprised in two volumes, whereas those which baya buen pasacal since are hardly contained in eieren.
since, in both cases alike the people are left in a fatal ignorance of those rules, by which they are bound to regulate their conduct.
The maxim, that ignorance of the law shall not excuse, may perhaps be justified on the ground of necessity; for very few criminals could possibly be convicted, if it were first requisite in every case to prove, that they had actual notice of the law: but yet those who have been frequently present at the trials of prisoners, must have had occasion to observe, that the presumption on which this maxim is founded, is often contrary to fact. (b)
The writer of the pamphlet, however, gives himself little pains to prove the efficacy or the necessity of those severe punishments, which he so much approves, but contents himself with observing that, “the regular, sober, and virtuous part of society has nothing to fear from the severity of the laws, but they have much to hope for.” † The same observation might be used with equal force, to take off the edge of men's indignation against the torture, in those countries where it still forms an essential part of the criminal procedure; for the regular, the sober, and the virtuous are little likely to be ever stretched upon the rack.
the rack. It might be employed to dissuade men from anxiously and strenuously asserting their right to the trial by jury; since the lives, the liberties, and the honor of the sober and virtuous very rarely depend upon a verdict of their peers. There had been much more truth, however, in the observation, if the writer, in lieu of those fine epithets, the regular, the sober, and the virtuous, - had said, the - wealthy part of society has
I Thoughts, &c. p. 8.
(b) Page, 45.