The conclusion to which we are led by this enquiry seems to be, that in all cases (except those of high treason and murder) the punishment of death may be safely abolished, and milder penalties advantageously introduced. Such a system of punishments, aided and enforced in a manner I have mentioned, will not only have an auspicious influence on the character, morals, and happiness of the people, but may hasten the period, when, in the progress of civilization, the punishment of death shall cease to be necessary; and the legislature of Pennsylvania, putting the key-stone to the arch, may triumph in the completion of their benevolent work.

THE LAWS OF AMERICA.

THESE laws are considered, 1. in general, 2. in Pennsylvania.

1. GENERAL OBSERVATIONS UPON THE PENAL LAWS

OF AMERICA.

That these punishments ought to be greatly lessened, if not totally abolished, is the opinion of many of the most enlightened men in America: among these I may be allowed to mention the respectable names of Mr. Jefferson, Mr. Wythe and Mr. Pendleton of Virginia, who, as a committee of revision, in their report to the general assembly of that state, recommended the abolition of capital punishments in all cases but those of treason and murder: a proposal, which, unfortunately for the interests of humanity, was rejected in the legislature by a single vote.

But authorities may mislead, and theory may be delusive. Government is an experimental science; and a series of well established facts in our state is the best source of rational induction for us.

Happily for Pennsylvania the examination and reform of the penal laws have been considered by the legislature as one of its most important duties. Much attention has been paid to this subject since the revolution. Capital punishments have, in several instances, been abolished; and in others, the penalty has been better proportioned to the offence. This has been considered as the commencement of a more general reform; and, if the result of the experiment shall be found to be such as the friends of humanity wish, it has been generally expected, that the legislature would resume the benevolent task. Proceeding with that caution, which innovation on an ancient system demands, they have paused in their labours, but it is hoped they have not abandoned the work.

What success has attended the new system of punishments, is therefore, a question interesting to humanity. Some years have elapsed since its first establishment, and we now have data sufficient to calculate its effects.

Few of the American constitutions are sufficiently express, though they are not silent, on this subject. That of New Hampshire declares, "that all penalties should be proportioned to the nature of the offence, and that a multitude of sanguinary punishments is impolitic and unjust, the true design of all punishments being to reform, and not to exterminate mankind." The constitution of Vermont enjoins the introduction of hard labour as a punishment, in order to lessen the necessity for such as are capital: and that of Pennsylvania framed in 1776, directed the future legislature "to reform the penal laws-to make punishments less sanguinary, and, in some cases, more proportioned to the offences." it was in Maryland alone that the general principle was asserted; and, in the enumeration of their rights, we find it declared, "that sanguinary punishments ought to be avoided, as far as is consistent with the safety of the state." The other

But

constitutions which touch on this subject content themselves with generally declaring, "that cruel punishments ought not to be inflicted." But does not this involve the same principle, and implicitly prohibit every penalty which is not evident ?

The experience of America does not contradict that of Europe. Crimes, which are capital in one state, are punished more mildly in another; and, in the same state, offences which were formerly capital are not so at present. Such are those of horse-stealing, forgery, counterfeiting bills of credit or the coin, robbery, burglary, and some others: but I cannot learn that these crimes have been better repressed by the punishment of death than by a milder penalty. Horse-stealing has always been treated like the other kinds of simple larceny in New England and in Pennsylvania: in all the states southward of Maryland, it is a capital crime. In the latter states the offence seems to be as common as in the former; and if the severity of the punishment has any beneficial effect, my enquiries have not been able to ascertain it. On the contrary, I have the best authority for saying, that, in Virginia, the effect is so feeble, that of all crimes this is the most frequent. New Jersey has made the experiment fairly. a felony of death; in 1769 the law was repealed: it was again revived in 1780; but after a few years experience, the legislature was obliged to listen once more to the voice of humanity and sound policy. The unwillingness of witnesses to prosecute, the facility with which juries acquitted, and the prospects of pardon, created hopes of impunity which invited and multiplied the offence *.

At first it was

* Horse-stealing is a crime which naturally irritates a nation of farmers and when they are provoked by its frequency, they are apt to call for a punishment neither proportioned to the offence, nor calculated to prevent it.

In the case of forgery the balance is clearly on the side of the milder punishment. It is capital in New York, but it is not so in Pennsylvania; and, in the latter state, there have been fewer convicted of this crime than in the former. It is natural that it should be so; for the public sentiment revolting against this severity, very few have been executed: and the mischief became so apparent, that the late attorney general thought it his duty to present a memorial to the assembly, and to recommend a milder punishment than death.

Another fact deserves notice. Bank bills have been several times forged in the state of New York: but in Pennsylvania this crime has never been committed, although the act which made it capital at first, was repealed above seven years ago.

This crime became so prevalent in Pennsylvania, during the confusions of the war, which interrupted the regular administration of justice, that the assembly thought it necessary to increase the , punishment of it. They would have extended the penalty to death itself, had not the late Judge Bryan, at that time a member of the legislature (who to a sound understanding added a familiar acquaintance with all the philosophy of jurisprudence) strenuously opposed it. He made it evident to the good sense of the country members, who were intent upon this punishment, that the severity of the act would defeat its execution, and that a milder penalty would be a more effectual restraint. The subsequent experience of Pennsylvania compared with that of New Jersy (where in the same year the penalty of death was resorted to) fully proves the soundness of this opinion.

I know not any government in Europe which punishes this offence with death, in the present day, except that of England; and even there, the humanity of the nation has almost virtually abolished it. Of ninety persons, who in the space of 23 years were convicted at the Old Bailey, previous to 1771, there were but 22

Counterfeiting the continental bills of credit and uttering them knowingly, were, as far as I can learn, much more frequent in this state, where they were capital, than in Connecticut where they were not. It appears, by the annexed table, that, in the space of two years, while such bills were current, there were eighteen persons tried for these crimes, of whom eleven were convicted. This is nearly equal to all the other instances of forgery, not capital, that have occurred in the long term of fourteen years. Robbery, burglary, and the crime against nature were formerly punished with death in this state: since the year 1786, they have been as effectually restrained by the gentler penalties of imprisonment and hard labour.

executed, which is less than a fourth. See Jansen's Tables. The multitude who escape for want of prosecution, or by the tenderness of juries, is much greater; and it is now so common to grant a reprieve, that a well informed writer affirms, that the chance of ob. taining it is, as one to forty in favour of the thief! Thoughts on Ex. Just. p. 42. One reason of this may be, that many persons consider it as unlawful to inflict the punishment of death, in any case of simple theft, since it is warranted by no part of the law given to the Jews.

A similar difficulty in enforcing á punishment so disproportionate to the offence, has been experienced in some parts of America: and it will every day become more and more apparent in those states, which still retain this unnecessary severity. I have very respectable authority (that of the attorney general of the United States) for saying, "that within the last ten years, pardons for horse-stealing have multiplied in Virginia and while the convicts might by law be put to hard labour, or executed at the will of the executive, scarce a single horse-stealer suffered death, unless he had repeated the crime, or was under some very obnoxious circumstances."