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who is mucli relied on, in the Thoughts on Executive Justice, for a purpose, with respect to which he is not so good an authority, as he is for the present ; because, I believe, it will be generally allowed, that he possessed tiie qualities of a magistrate in a much more eminent degree than those of a legislator, was so sensible of the importance of preventing the disorders which are suffered in the lowest ranks of life, that he does not scruplu to own, notwithstanding he is so stern an advocate for not pardoning convicts, that considering the little attention which is paid to this particular, “it is a wonder that we have not a thousand more robbers than we have;" and that the circumstance of all the wretches whom he describes as harboured in gin-houses and miserable brothels, not being thieves, “must give us either a very high idea of their honesty or a very mean one of their capacity and courage.” * That this evil is rather increased than diminished since that author wrote, will not, I believe, be disputed. Nor will it be questioned that it is as much our interest, as it is our duty, to remove that evil ; for till that be done, crimes must become every day more frequent, and that property which we so highly value, every day more insecure. The means of remo. ving it are plain and obvious-to supply the poor with employment; to prevent them from plunging into drunkenness, gaming, and idleness, which are the forerunners of every other vice; and above all to suppress these disorderly houses and seminaries of thieves, which are notorious to all the officers of the police, but which it is the interest of all of them should continue and should thrive, But to effect all this, one of two things is absolutely necessary; either gentlemen of
deem the real author of them. This principle might with equal reason be extended farther, and the crimes of the poor be punisha ed upon the rich, who are their natural fathers aud guardians.
* An enquiry into the cause of the late increase of robbers, &c. by H. Fielding, Esq. p. 143.
character, of property, and of education, must in every part of the kingdom, undertake the very important duties of justices of the peace (for by such alone can those duties be properly discharged) or some different system of police from that which now prevails, must be established. (c)
Another thing essentially requisite (more so indeed than all the rest) to the prevention of crimes is, what I have before mentioned, and what I must be permitted again to insist on, a total reyision and reformation of our penal laws. How it has happened that, that work has never yet been executed, is indeed difficult to conceive. It can hardly have arisen from any distrust of their own abilities for such a task, in those whose peculiar duty it is to undertake it ; because, although to compose a perfect criminal code, or, in the words of Solon, the best that the country can bear,” is an enterprize requiring such talents as it would be flattery to compliment any of our ministers, or of our leaders of opposition, with possessing ; yet to correct many of the grossest absurdities in our laws, to make them much less inconsistent, much less obscure, and much less inhuman, than they are, is a task to which abilities greatly inferior to those we see every day exerted in interested pursuits, would be fully equal. It is impossible therefore to ascribe the long existence of this evil to any other cause than to that fatal indifference for the public good, which has so unhappily so wide an influence, and which those very laws contribute in a great degree to propagate. One may hope, however, that a sense of the inconveniences, which the public at this moment labours under, from frequent frauds and outrages, may at last overcome this lethargy, and awaken men to the true source of these calamities. But whether it do or not, this may safely be pronounced ; unless the penal laws be refornied, all those evils
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which the public feels, and which the writer of the Thoughts recites and exaggerates, must infallibly continue and increase, even though the practice should be unrelentingly persisted in of hanging up ten or twenty criminals every six weeks in the metropolis, and though in the country the judges' circuits should every where be marked with blood, and they should carry, as we are told“ the constitution intended they should carry, terror aud astonishment into the minds of all*.” (d)
But to return to the principal ground of this writer's complaints—the mal-administration of justice by an abuse of the power of suspending or remitting punishment. It is a subject indeed, on which he seems to have no fixed or certain principles. From some passages in his work one might almost conclude, that he thought the judges had not by law any power of reprieving convicts; and that, in every instance of their preventing the immediate execution of a condemned prisoner, they violate their duty and subvert the constitution. If this were the factt, it would afford such an argument for a reform of our laws, as must be irresistible ; for laws so sanguinary, that the very men appointed to guard and enforce, would find themselves compelled to counteract and defeat them; that the very sages of the law would be under the constant
* Thoughts, &c. p. 25. of The judge's standing between the judgment and execution, is taking upon himself not only to be wiser than the law, but a power, which, if wantonly and causelessly exerted, must render the most important and salutary laws contemptible and useless. The judge, in such a case as this, sets himself above the law, and presumes to exercise an authority with which the constitution has not entrusted even the crown itself.” Thoughts, &c. p. 46, ist. edit. 48, 2d. edit.
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necessity of acting illegally, and the ministers of the public justice of betraying their public trust; could be considered in no other light than as a disgrace to the nation and a reproach to humanity. If this' were a true representation of the conduct of the judges, a reform of the laws would be necessary, if it were only as an indemnity to them. Either the laws ought to be reformed, or the judges impeached. But in truth (and the writer of the Thoughts seems by other passages to acknowledge it) the judges have a strictly legal power to reprieve all convicts, : and when it is considered, that by exerting that power they do nothing more, than not prevent the crown from pardoning, it cannot be matter of surprise that reprieves are frequent 8. (e)
The judges are subject to no other restraint in the exercise of this power, than that which is common to every man whom the constitution has entrusted with any discretionary power; the duty of exercising it prudently and conscientiously. Even the crown, in the exercise of its prerogative of pardoning, lies
I 66 Where the rigour of law,” says Mr. Justice Forster, "bordereth upon injustice, mercy should if possible interpose in the administration. The judges are ministers appointed by the crown for the ends of public justice ; and should have written on their hearts the solemn engagement his majesty is under, to cause law and justice IN MERCY to be executed in all his judgments." And in another place, “Whenever, in the case of individuals, the general rule shall be found to border on the summum jus, the benignity of our law hath provided a proper resource in the equity of the crown. I say the equity of the crown; for mercy to indi. viduals, when properly conducted, is founded in natural equity, and in the principles of our constitution. It is nothing more than weighing the merits of each case, all circumstances considered, in the scale of wisdom and sound policy, against the rigour of the law.” Forster's Crown law, p. 264, 184.
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under the same restraint. That these discretionary powers have in every particular instance been properly exercised, either by the erown or by the judges, it is not necessary, nor do I profess to maintain. If it has happened, that thieves of any description have been suffered to go quite unpunished, and have been turned loose upon mankind ; and much more, if murderers, or even robbers, guilty of acts of cruelty, have been shielded, by the interposition of the prerogative, from the punisliment due by law to their crimes, undoubtedly a very gross breach of trust to the public has been disguised under the false name of mercy to the prisoners ; for,
Mercy but murders, pardoning those that kill 11. But instances of that kind have of late years but very rarely, if ever occurred. Far, however, be it from me to pay the learned judges so fulsome a compliment as, that “there are not twelve honester or worthier men in the kingdom” than themselves*! Much farther be it from me, before the smile of compliment has passed from my cheek, to stab those venerable magistrates to the heart, with the insolent reproach, that • they are little better than acccssaries before the fact t,” or with the scandalous insinuation, that “they save felons only because they are condemned 1.” Yet I will not hesitate to assert, that, whenever those judges have reprieved men convicted of felonies, in which no violence or outrage has been offered to any one, in order that all the circumstances of those poor wretches' cases might be laid before the crown, far from deserving censure, they have done nothing but what became them as men, and what as magistrates they were fully authorized to do by the letter and the spirit of the law, and the constitution. (f)
#Shaksp. Rom. and Jul.
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