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al expence of maintaining them would be more than defrayed by the earnings of the convicts. (6)
But to return to the “ Thoughts on executive justice": the principle, which the writer of them endeavours to establish, is, that the laws ought to be strictly executed, in order that men may be deterred from committing crimes by the certainty of punishment. And there can be no doubt that, if it were absolutely certain that punishment would attend upon every crime, as its inevitable consequence, none would ever be committed, but those which are instigated by despair, or by the frenzy of some ungovernable passion ; because every rational being does, unquestionably, in every action of his life, propose to himself some advantage, immediate or remote; but, if punishment were the certain consequence of crimes, no criminal could persuade himself, that by perpetrating his guilty designs, he would acquire any benefit to himself; but must know on the contrary, that he would draw down a certain evil on his head. To suppose, that a man would violate the law under such circumstances, for the sake, perhaps, of some momentary enjoyment, is to suppose, contrary to nature, that he would knowingly swallow a deadly poison, because it was pleasing to the taste.(c)
If such an absolute certainty could be established, it were the most wanton cruelty to punish with death any other crime than murder ; for the gentlest penalties would then be sufficient to prevent all those crimes, which are produced by the desire of gain ; since none would make such an attempt to gratify that desire, as he must know could end only in loss and disappointment: anda rational being will no more cut his finger than his throat, by design. (d)
That an absolute certainty of punishment is, however, quite unattainable, is clear from this consideration alone ; that
(6) Page 61.
(c) Page 63.
(d) Page 64.
liable to err.
punishment is inflicted in consequence of the judgment of men, and that men have only imperfect faculties, and are always
Neither the jury nor the judge can look into the heart of the prisoner : they must decide according to evidence ; that evidence may be defective, and consequently the criminal may always nourish hopes that he shall not be convicted of the crime which he meditates. It is wild therefore to talk about establishing "a certainty of suffering if men offend ; ” || for the utmost that can be done is to lessen the probability which offenders have of escaping; and when the question is, whether the existing laws shall be rigidly enforced, the matter chiefly to be considered is, whether the mischief resulting from such a measure, would not far outweigh all the good that can be attained by cutting off some of a felon's hopes of impunity. (e)
If the power of pardoning were abolished, and conviction doomed the convict to inevitable death, the chances against a criminal would be greater undoubtedly than they are at present, but there would still be a very considerable chance in his favour; and a thief, like a deluded gamester, will play con, even though the odds be against him. He can hardly be supposed to be so accurate a reasoner, or so exact a calculator, as this system presumes. He is hardly accustomed to retlect much on what is past, or to look forward very thoughtfully on what is to come. His crimes and his tumultuous pleasures make up the business of his life, which is hurried on through one continued round of violence, riot, and dissipation : adn the gallows, which tears his accomplice from him, inspires him with no other care than to find out some new companion. The state of mind of a criminal, in the moment of violating the law, is thus finely described by an historian, who was a
|_ Thoughts, &c. p. 117, 1st edit. 124, 2d. edit.
(e) Page 66.
perfect master of the human heart; neque periculi nescius erat sed nonnulla fallendi spe, simul magnis præmiis opperiri futura, & præsentibus frui pro solatio habebat. With Such a temper of mind, can it be supposed, that a man will be prevented from committing any crime, because he has only three chances of escaping, where he once had four? and that this is all that can be expected from the measures which are proposed, a little reflection will evince. For the criminal who could not expect a pardon, would still have left other, and very fruitful sources of encouragement, and of deceitful hope. He might still flatter bimself, that he should be able to elude all the pursuits of the officers of justice ; * that the men, whom he had robbed, might not recollect his person ; that compassion might prevent them from swearing positively against him ; or that the jury might be touched with pity, and acquit him in spite of the clearest evidence. The object therefore which this writer aims at is not to be
* The history of the two brothers of the name of Weston, who, after having robbed the mail, bafiled all that vigilant zeal in their pursuers, which was quickened by the very large rewards offered, both by the government and by the post office, and established themselves securely in the country as farmers; and the example of the notorious pick pocket, who has been repeatedly tried at the Old Bailey without being convicted, may be supposed to have at least as much influence on the conduct of robbers, as the story either of Patrick Madan, who was so often convicted and so often reprieved (Thoughts, &c. p. 92, 1st Edit. 96, 2d edit.) or of that highwayman who,” we are told with the most immoral and most indecent jocularity, “ might console himself, like the heroic Porti. us, with saying,
66'Tis not in mortals to command success,
“ We will do more, Sempronius, we'll deserve it.” Thoughts, &c. p. 59, 1st edit. 63, 2d edit.
attained by the means which he recommends; and the consequence of adopting his system would only be, that much blond would be spilt to very little purpose. The truth of this assertion does not rest merely upon argument and proba. bility, experience proves it. The system so earnestly recom. mended has been tried, tried in this very country, and tried without the least success ; for, in the cases of forgery, and robbing the mail, the law has been always executed with the utmost severity, that the most un feeling rigourist could wish, + ministers being even afraid to pardon such offenders, on account of the clamours of trading people, governed by sordid passions, and by the rage of interest; and yet those crimes were never more frequent in England than they have been during the last twenty years. From this experience we may, I think, fairly conclude, that the measure, if adopted, could not be efficacious ; let us, in the next place, see how far it would be just or legal. (1)
It is proposed that the laws should be strictly enforced, that all their terrors should be awakened, and their utmost severity called into action, and this, in the true spirit of a tyrant, when the people least expect it, and when they have been long lulled into security by the mild administration of justice ; for no other promulgation of this resolution is proposed than its sudden execution. In what respect such a proceeding is less unjust, less illegal, or less inbuman, than an ex post facto law, I profess myself unable to discover. Uninterrupted usage constitutes law, nay, according to a maxim very familiar to lawyers, established errors become the law of the land. † That mode which has long and uniformly prevailed, and which has been acquiesced in by those who have the power of controling the executive magistrate, is certainly
+ This the author of the Thoughts himself admits. See the note p. 108, 2d edit.
Communis error facit jus.
W) Page 71.
the legal and established mode of executing the law. That mode is notwithstanding now to be laid aside, and a very different and even contrary mode to be adopted in its stead, without so much as previous notice being given to the public by a proclamation from the crown. Even they, who, a little before the commencement of the last war, ventured to advise the king to revive an obsolete statute of Henry the eighth, and to try men in England for treasons committed in foreign parts, yet thought it not advisable to go all the lengths this gentleman recommends, but took care to temper the injustice of the measure by having it notified to the world, and notified in the most public and solemn manner, by an address to the crown from both houses of parliament. But in the present case, the subject not being one of those which are considered as of great political importance, nor of sufficient dignity to rouze the zeal of any opposition, it is probably thought that a previous promulgation may safely be omitted, as a vain and superfluous ceremony. And it is certainly true, that the gibbets, which are first loaded with the victims of this bloody resolution, will sufficiently publish it to the world ; but then it is not easy to conceive, by what casuistry the executive power will acquit itself of the charge of having wantonly spilt the blood of those wretches, which its former relaxation will baye ensnared, and made the prey of its present rigour.(g)
But yet such a proceeding is represented by the writer as a kind of duty to the legislature, whose intentions he takes upon himself to say have been frustrated, * and whose dignity he insinuates has been insulted + by the conduct of the judges: and yet that legislature has never expressed the slightest dis
* Thoughts, &c. p. 13, 44, 1st. edit. 45, 2nd. edit. # Ibid. p. 46, Ist. edit. -48, 49, 2nd. edit.
(g) Page 80.