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approbation of the mode in which the laws are now executed, although it must necessarily be presumed to be better acquainted with its own sentiments than
officious individual can be. There is the greatest reason to imagine, not only that the legislature does not disapprove, but on the contrary that it highly approves of the spirit in which the laws have long been executed. To suppose the legislature ignorant or indifferent upon such a subject, is to suppose it culpable in the extreme; its silence therefore cannot be considered as negative, but must be construed into a sanction, and a warm approbation. Dum tacet clamat. And indeed it is hardly possible to doubt, that the parliament had the clemency of the crown in its contemplation, when it passed all those modern statutes, by which new felonies are created; for that the legislators of an enlightened
age, and of a nation boastful of its humanity, should punish the slightest offences with death, is not to be accounted for, but upon the supposition, that those punishments are only held out as a terror, and never intended to be inflicted but in the most aggravated cases. (h)
The author of the Thoughts on Executive Justice, judging rightly that his system stood in need of some other support than the arguments by which he has attempted to maintain it, endeavours to avail himself of some of the greatest authorities, ancient and modern. The venerable names of Plato and of
Cicero are resorted to for this purpose, though neither the a philosopher *, nor the orator ty spoke of any other laws than
* By the laws of Plato, theft was to be punished by a penalty of double the value of the thing stolen, or by imprisonment, if the thief were unable to pay the penalty.-Plato de leg. dial. 9.
+ The punishment of theft, by the Roman law, was a penalty in some cases of double, and in others of four times the value of the thing stolen.--Aul. Gell. lib. xi. c. 18. Inst. lib. iv. tit. 1. $. 3,50
(h) Page 82.
those by which offences against property were punished only with pecuniary amercements. Montesquieu and Beccaria too are cited as approving this unmerciful doctrine, though both those writers contend that the laws should be religiously cxecuted only where they are mild and equitable. † The gentleman undoubtedly forgot, that one of those authors has very strenuously maintained, that it is both unjust and impolitic to inflict the punishment of death for any, even the most atrocious crimes ; * and that the other expressly approves of the very practice established here, which this writer so strongly reprobates, that of mitigating the punishment of robbers. + Little did the benevolent Beccaria think, while he was composing his work, of which every sentence was dictated by a spirit of humanity, and for which he desired no greater reward than the blessings and the grateful tears of some victim rescued by him from judicial tyranny and injustice; ş little did he think that the time would ever arrive,
I See Montesquieu, de l'esprit, des loir, liv. vi. c. 12. de la puissance des peines ; and c. 16. de la juste proportion des peines Evec le crime ; aud Beccaria dei delitti e delle pene, s. 20. where he says, la severità di un giudice inesorabile, per essere un' utile virtù, dev' essere accompagnata da una dolce legislazione. Nel disordine del sistema criminale, il perdono e le grazie sono necessarie in proporzione dell' assurdità delle leggi, e dell' atrocità delle condanne ; and see g. 15} della dolcezza delle pene. * Dei delitti e delle pene, ş. 16. della pena
di morte. + De l'esprit des loix, liv. vi. c. 16.
Se sostenendo i diritti degli uomini, e della invincibile verità contribuissi a strappar dugli spasimi, e dalle angosce della morte qualche vittimas fortunata della tirannia o della ignoranza, ugual. mente fatale, le benedizioni e le lagrime di un solo innocente nei trasporti della gioju mi consolerebbero dal disprezo degli uomini. Dei delitti e delle pene, introd,
when his name would be cited as an authority to confirm and to invigorate that tyranny and that injustice; when his book would be made the instrument of extending all the evils of those systems of criminal law which he sought to reform; when all his principles which favored humanity, would be rejected, and those alone would be adopted, which, being applied to the existing laws, could serve but to aggravate their severities, and to multiply their mischiefs. (a)
Undoubtedly, to render laws respected and efficacious, they must be strictly executed ; § but a far more indispensable requisite to that end is, that those laws be wise and just ; for otherwise, the more rigorously they are enforced, the more they will be detested and despised. If we would have our laws invariably executed, we must first render them such, that all the wise and honest will join their wishes, and contribute their exertions, to have them observed; and not leave them armed with such severities, that nature tells one it is a virtue to disappoint and to prevent their execution. In a des potic state, it may perhaps be possible to execute the most unnatural laws with the most obdurate rigor ; but it will assuredly be impossible under an English government, as long as the nature of man endures, and some faint sparks of humanity remain unextinguished in his bosom. Were the judges to adopt this writer's principles, and to leave every man for execution, who had been convicted upon full evidence, the consequence would inevitably be, that much fewer criminals would be convicted. Juries would then take upon themselves to judge of the policy and justice of the law, upon which cvery prisoner was indicted; and all those evils which the writer so well describes, in the beginning of the second part of his work, would be infinitely multiplied, for jurors would easily quiet
Ş Thoughts, &c. p. 132, 1st. edit. 138, 2d. edit.
(a) Page 87.
their consciences upon a perjury which was the means of preventing murder. Those witnesses who come into courts of justice, thirsting for the large rewards which the legislature or the government holds out to them, might still, it is probable, be officious to discharge their gainful duty; but few other persons would consent to appear in the characters of prosecutors, or of witnesses, where they must be instrumental in, what they would consider as, acts of solemn injustice and cruelty. And thus offenders, instead of suffering, as they now do, a milder punishment than the law prescribes, would be left in most cases to enjoy complete impunity. * (6)
Nevertheless, I will readily agree with the writer, “that something should be done, or we may apprehend much worse consequences than we have hitherto experienced.” + But that something is not what he has pointed out, and it is the more important that the public should know it is not, because'; by a strange infatuation he endeavours to damp allother projects, and fondly insists that his, and his “alone, can deliver us from our present dreadful situation.” | As to the most effectual, but
* This is the effect which the rigid execution of the law has produced among the French, if we may believe one of their own magis. trates. Speaking of the law by which a serrant who robs his master is punished with death, he says, Cette loi si dure s'est corrigée par elle même: l'horreur de voir un gibet à sa porte, et la crainte de la haine et des malédictions publiques, arrétent la plainte des maîtres; et l'excès même du châtiment a produit l'impunité d'un vol, qu'une loi plus modérée eût infailliblement réprimée. Discours sur l'administration de la justice criminelle, par M. Servan, avocat géné. ral a Grenoble. Lyon 1774, p. 96; and see Observations concer. nant l'execution de l'article ii. de la declaration sur le vol. to Thoughts, &c. p. 123, 1st edit. 128, 2d edit. Thoughts, &c. p. 87, 88, 1st edit. 92, 2d edit.
(b) Page 90.
what he is pleased to call the subordinate means of preventing crimes, such as encouraging industry, and diminishing the sources of vice and dissipation,” these he dismisses with the contemptuous epithet of "palliatives,” and with telling us, “ that he fears they will not now avail ;" I though, I believe, it is the first time that a remedy, wbich strikes at the root of the evil, was stiled a palliative, or that a man presuming to think his arguments might influence the public opinion, ventured to declare, that it was more importart to punish crimes, than to prevent vices. But however lightly he may pass over this topic, few of his readers, I believe, will think it undeserving a little more attention. His assertion “that it is most of all to be wished, that crimes might be lessened by prevention," ş no man can dispute; but at the same time who can go on with him to say, that the most likely means of prevention are, “the fears of severe punishment :” Ought it not rather to be said, that the most likely means are, to preserve uncorrupted that large but unfortunate description of persons, who, being born in misery and indigence, and differing from us in nothing but the accidents of rank and fortune, are entitled to our utmost care and protection? For, if we negligently suffer a thousand sources of profligacy, and encouragements to vice to surround these helpless creatures on every side, what a refinement of cruelty is it, to hang the thieves and profligates whom we have made, and whose only crime was, that they had not such uncommon philosophy and resolution as to be able to resist the temptati. ons with which we have ensnared them? | The writer
I Thoughts, p. 78, 79, 1st edit. 82, 2d edit. § Ibid. &c. p. 10.
ll The Chinese consider a man's vices as his misfortunes, and as the effects of the bad education which he has received, and there. fore punish his crimes upon the head of his father, whom they